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Bentley v. Multnomah County Sheriff's Office

Court of Appeals of Oregon

May 22, 2019

Gregory James BENTLEY, Petitioner-Appellant,
v.
MULTNOMAH COUNTY SHERIFF'S OFFICE, Respondent-Respondent.

          Argued and Submitted March 15, 2019

          Multnomah County Circuit Court 17CV11314; Adrienne C. Nelson, Judge.

          Iván Resendiz Gutierrez argued the cause for appellant. Also on the briefs were P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP.

          Jacqueline Kamins argued the cause for respondent. Also on the brief was Jenny M. Madkour.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Petitioner appeals from a judgment that denied his petition under ORS 166.274 for relief from a frearm restriction resulting from conviction for three robbery offenses in 1997. Held: Petitioner demonstrated by clear and convincing evidence that he does not pose a threat to the safety of the public or himself. He fully served his term of incarceration and successfully completed his supervised release obligations. In the twenty years since the offenses, he has not had an arrest or conviction for any crime. The trial court erred in denying relief from the frearm restriction.

         Reversed and remanded for entry of judgment granting petition.

         [297 Or.App. 610]DeVORE, J.

         Petitioner appeals from a judgment that denied his petition under ORS 166.274 for relief from a firearm restriction resulting from a robbery conviction.[1] He argues that the trial court erred because he established that he does not pose a threat to the safety of the public or to himself. We agree and reverse.

         We review the denial of a petition for relief from Oregon's firearms bar de novo on the record. ORS 166.274 (10)(a). Given that standard of review, "we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence." Dept. of Human Services v. D. W. M., 296 Or.App. 109, 112, 437 P.3d 1186 (2019). At the same time, "we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." Fitts v. Case, 243 Or.App. 543, 552 n 3, 267 P.3d 160 (2011). As we explain later, the trial judge did not make credibility findings in this case.

         In 1997, petitioner pleaded guilty to two of three counts of bank robbery under 18 USC section 2113(a) for committing unarmed robberies at two banks and one credit union. The federal trial court sentenced him to 35 months in prison, two years of supervised release, and payment of $6, 933 in restitution. Petitioner served his term of imprisonment without issue. As conditions of supervised release, he was required to submit to random drug testing and warrantless searches of his person and property. He was also ordered not to commit another crime and not to possess a firearm. Petitioner satisfied the conditions of his supervised release without incident. Over time, he paid the restitution sum in full. After satisfying those conditions, his probation officer sent him a letter in 2002, saying:

"Congratulations on a job well done. *** Please be advised, however, that the right to bear a firearm is a right which cannot be returned to you at this time due to budget constraints by the Bureau of Alcohol, Tobacco, and Firearms."

[297 Or.App. 611] (Boldface in original). Since his felony offenses in 1997, petitioner has been prohibited from owning or possessing a firearm.

         In 2017, twenty years after the offenses, petitioner petitioned the trial court pursuant to ORS 166.274 for relief from the firearm ...


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