and Submitted October 9, 2019.
County Circuit Court 17CR 6772 2, 17C R 0762 5; A166774
(Control), Sean E. Armstrong, Judge.
E. Thompson argued the cause for appellant. Also on the brief
was Ferder Casebeer French & Thompson, LLP.
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.
Shorr, Presiding Judge, and James, Judge, and Landau, Senior
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.
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.
Or.App. 239] JAMES, J.
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
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
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.
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.
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.
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.
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).
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."
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.
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.
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
"THE COURT: Okay. Ms. Cadotte.
"[PROSECUTOR]: There's no objection to that, Your
"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
"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