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State v. Slight

Court of Appeals of Oregon

December 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL MARTIN SLIGHT, Defendant-Appellant.

          Argued and Submitted October 9, 2019.

          Marion County Circuit Court 17CR 6772 2, 17C R 0762 5; A166774 (Control), Sean E. Armstrong, Judge.

          Jason E. Thompson argued the cause for appellant. Also on the brief was Ferder Casebeer French & Thompson, LLP.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Shorr, Presiding Judge, and James, Judge, and Landau, Senior Judge.

         Case Summary:

         In this consolidated criminal appeal, defendant appeals from two judgments of conviction for one count of sexual abuse in the first degree and two counts of encouraging child sexual abuse in the first degree. Defendant executed conditional guilty pleas reserving his right of review of specific adverse pretrial rulings, including his motion in opposition to the denial of pretrial release. On appeal, the parties first dispute whether the pretrial release issue is moot in light of defendant's subsequent conviction. Second, the parties dispute whether the evidence was sufficient to support the trial court's denial of pretrial release.

         Held:

         Even though defendant is no longer confined pursuant to the pretrial detention ruling, a ruling in defendant's favor on appeal would give him the right to withdraw his pleas; thus, the Court of Appeals determined that the pretrial release issue was not moot. Additionally, in examining the interplay between pretrial release statutes, the Court of Appeals determined that the primary and secondary release criteria as set forth in ORS 135.230 concern the form of release only, and do not govern on whether release can be denied at all. Whether pretrial release can be denied in cases involving violent felonies is governed by ORS 135.240, which requires that a denial be based on clear and [301 Or.App. 238] convincing evidence of a danger of physical injury or sexual victimization to the victim or members of the public by the defendant while on release. In finding clear and convincing evidence, the trial court relied, in part, on statements by the prosecutor at the release hearing. The Court of Appeals held that was error, as an attorney's unilateral assertions are not evidence. Nevertheless, even when excising the prosecutor's statements, the Court of Appeals determined that the evidence was sufficient to deny pretrial release.

         Affirmed.

         [301 Or.App. 239] JAMES, J.

         In this consolidated criminal appeal, defendant appeals from a judgment of conviction in Marion County Case No. 17CR07625 of one count of sexual abuse in the first degree, and one count of sodomy in the first degree. In Marion County Case No. 17CR67722, defendant appeals from an amended judgment convicting him of two counts of encouraging child sexual abuse in the first degree. The court entered both judgments following defendant's entry of two conditional guilty pleas pursuant to ORS 135.335(3), which provides a mechanism for a defendant to reserve "in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion." We affirm.

         The underlying facts of this case are minimally relevant to our analysis and we recount them briefly. Defendant's nine-year-old daughter accused defendant of repeatedly sexually abusing her over a period of time. On February 27, 2017, the Marion County grand jury indicted defendant in Marion County Case No. 17CR07625 for five counts of sexual abuse in the first degree, two counts of sodomy in the first degree, and two counts of attempted sodomy in the first degree.

         Defendant requested a pretrial release hearing, asking the court to order a security release and set bail at an amount that his parents would "more likely than not" post. The state opposed the request, arguing that there was "a danger of physical injury or sexual victimization to the victim or members of the public by the defendant while on release." After an evidentiary hearing, the trial court ordered defendant held without bail.

         While that case was pending, on June 15, 2017, Detective Staples, with the Salem Police Department, applied for, and was granted, a search warrant, reportedly, for defendant's computer, which had been in the custody of the McMinnville Police Department's since 2011. An informant told Staples that she had dated defendant in 2011, and that at some point in her relationship with him, he had showed her child pornography on that computer. Staples also indicated that he was "made aware of an investigation [301 Or.App. 240] in 2011 with the McMinnville Police Department involving [defendant] and [the informant]." Ultimately, according to Staples, the McMinnville Police Department received the laptop in question and had held it ever since. A forensic evaluation of that computer led to the filing of charges in Marion County Case No. 17CR67722-three counts of encouraging child sexual abuse in the first degree.

         Defendant moved to controvert the affidavit in support of the search warrant. The court denied the motion. On January 2, 2018, pursuant to ORS 135.335(3), in Case No. 17CR07625, defendant entered conditional guilty pleas to Counts 1 and 6. Similarly, that same day, in Case No. 17CR67722, defendant entered conditional no contest pleas to Counts 1 and 2. This appeal followed, and the cases were consolidated.

         On appeal, defendant advances two assignments of error, the first of which challenges the trial court's denial of his motion to controvert the search warrant of his computer. We reject that assignment without discussion. In his second assignment of error he challenges the denial of his motion for pretrial release. The state responds that any pretrial detention ruling is now moot, and therefore nonjusticiable, in light of defendant's subsequent conviction. Alternatively, the state argues that even if defendant's challenge to the court's ruling is justiciable, the trial court did not err because, on this record, clear and convincing evidence established that defendant presented "a danger of physical injury or sexual victimization to the victim or members of the public *** while on release." ORS l35.24O(4)(a). Finally, the state argues that even if there was not clear and convincing evidence of a risk of physical injury or sexual victimization under ORS 135.240(4), the trial court articulated a second independent basis for its decision-the "primary release" criteria set forth in ORS 135.230(7). According to the state, the primary release criteria permitted the trial court to deny release based on its conclusion that "the method most likely to ensure that [defendant] appears at trial and is not a danger to the public is to have him remain in custody." Because defendant does not separately challenge the trial court's "primary release criteria" rationale, argues the state, defendant cannot prevail on appeal.

         [301 Or.App. 241] Whether the statutory requirements existed to deny pretrial release is a question of law, reviewed for errors of law. Haynes v. Burks, 290 Or. 75, 79 n 3, 619 P.2d 632 (1980) (The court must evaluate "the strength of the state's proof rather than the exercise of discretion. The law does not leave a court discretion to release a defendant charged with murder when the proof of guilt is 'evident or the presumption strong,' nor to deny release when the proof, though sufficient to go to trial, falls below this standard") (internal citations omitted). In making that legal assessment, as is customary, we defer to the trial court's factual findings where there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

         At the outset, although preservation is not contested in this case, we have an "independent obligation to determine whether an argument advanced on appeal was preserved at trial." Vokoun v. City of Lake Oswego, 189 Or.App. 499, 508, 76 P.3d 677 (2003), rev den, 336 Or. 406 (2004) (citing State v. Wyatt, 331 Or. 335, 344-46, 15 P.3d 22 (2000)). This obligation must be satisfied even when a failure to preserve an argument has not been asserted by the opposing party. Wyatt, 331 Or at 346-47.

"With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea."

         Under the statute, for a conditional plea agreement to effectively preserve an issue for appellate review, the plea agreement must do two critical things: First, it must reserve the "the right" to "review" in writing. Second, it must "specify" the pretrial motion for which appellate review is sought.

         We have interpreted "specify," as used in ORS 135.335(3), to mean "to mention or name in a specific or explicit manner." City of Lake Oswego v. Albright, 222 Or.App. 117, 119-20, 193 P.3d 988 (2008). In Albright, we considered a conditional plea where the plea petition contained the following language: "Stip facts w[ith] reservation of appeal [301 Or.App. 242] rights[.]"id at 119. We held that language insufficient under the statute, reasoning that

"[a]lthough defendant made a handwritten notation on his plea petition, that notation does not specify in writing the pretrial motion as the subject of the contemplated appeal, as the statute requires. The statute means what it says. The legislature's intent to restrict the reviewability on appeal to specified rulings in the event of a conditional plea of guilty is apparent on the face of ORS 135.335(3), and we are without authority to relieve defendant from the burden of complying with what the legislature intended."

Id. at 120.

         Here, defendant's plea petition reads, "This is a conditional plea-see court record for specific conditions of plea." The parties are in agreement that the "court record" referenced in the plea petition is the following portion of the transcript:

"[DEFENSE COUNSEL]: And with that, also, Your Honor, it is important that the record reflect that this is a conditional plea. Both sides are well aware of the conditions attached to this plea.
"The plea petitions themselves reference the nature of the conditional plea in two places. The first paragraph, on paragraph-on page 2 specifically states that these are conditional pleas and that the specifics of those conditions would be found in this record.
"And then they also-both of the petitions reference in paragraph 11 walking back the blanket prohibition of appeals to specifically exclude the terms of these conditional pleas. So the-the plea petitions reflect this agreement in two places, Your Honor. And if there's any ambiguity about that from the State at this point, I'd like the State to put that on the record. Otherwise, we'll assume the State has no objection to the nature-to the fact that these are conditional pleas.
"THE COURT: Okay. Ms. Cadotte.
"[PROSECUTOR]: There's no objection to that, Your Honor.
"THE COURT: Okay.
[301 Or.App. 243] "[DEFENSE COUNSEL]: And then those specific objections-those specific conditions are these, Your Honor: That [defendant] has the ability to appeal any and all pretrial motions made by Your Honor in this matter, including, but not limited to the motion to suppress hearing, the motion to controvert, and then any pretrial motions arising from bail or release. I think we had at least-I want to say at least three of those, Your Honor. Two initially and then one just recently over my client's-the death of my client's mother.
"All of those are envisioned as part of this conditional plea, so that there's no restrictions on those appeals. And again, if the State has any issues with that, now would be the time for them to bring that up.
"THE COURT: Okay.
"[PROSECUTOR]: And, Your Honor, the State has no issues with ...

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