State v. Bertha, A145681 (Control); A145682

• Decision Date: 24 April 2013
• Docket Number: 060633254.,100342905,A145681 (Control); A145682
• Citation: 300 P.3d 265,256 Or.App. 375
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Douglas Aaron BERTHA, Jr., aka Douglas Bertha, Jr., aka Douglas A. Bertha, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

256 Or.App. 375

300 P.3d 265

STATE of Oregon, Plaintiff–Respondent,

v.Douglas Aaron BERTHA, Jr., aka Douglas Bertha, Jr., aka Douglas A. Bertha, Jr., Defendant–Appellant.

A145681 (Control); A145682; 100342905, 060633254.

Court of Appeals of Oregon.

Argued and Submitted May 30, 2012.

Decided April 24, 2013.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and BREWER, Judge pro tempore.

SERCOMBE, J.

This consolidated appeal involves two cases: the first case (the 2010 case) concerns defendant's April 2010 convictions, following a trial on stipulated facts, for unlawful entry into a motor vehicle, ORS 164.272, and second-degree theft, ORS 164.045. The second case (the 2006 case) concerns, as pertinent here, the resultant revocation of defendant's probation and imposition of additional terms of incarceration on defendant's prior 2006 convictions due to his “new criminal conduct” in connection with the 2010 case.

Defendant first appeals the April 2010 judgment of conviction, assigning error to the trial court's denial of his motion to suppress evidence obtained after police entered his home without a warrant in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Specifically, he argues that the court erroneously determined that (1) one of the home's occupants consented to the warrantless entry merely by moving out of the way just before an officer walked through the doorway with his weapon drawn and (2) a second person, also a suspect, consented to the search by walking toward that same officer as he stood in the doorway. That is, challenging the trial court's determination that “[t]here was consent by conduct[,]” he asserts that, “[a]t most, the people in the home acquiesced to the officer['s] armed entry into the home.” ¹ (Emphasis added.) Addressing defendant's first argument, the state responds that the occupant in question moved out of the doorway “without being prompted and before the officer tried to enter[,]” thereby voluntarily consenting to the officer's entry.²

Defendant next appeals the order and judgment—issued on the same date as the judgment in the 2010 case—revoking his probation and imposing 24 months' additional incarceration on the convictions in the 2006 case. He assigns error to the trial court's denial of his motion to dismiss and terminate probation, asserting that the court earlier extended his probation “without securing a valid waiver of his right to a hearing with counsel” in violation of both Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. In other words, defendant contends that he should not have been on probation at all in 2010 because the order extending his probation beyond November 2009, when it was originally set to expire, was constitutionally invalid. The state responds, first, that defendant's argument to that effect constitutes an impermissible collateral attack on the earlier, appealable order extending his probation. On the merits, it contends that defendant's prior experience with the criminal justice system supports a finding that he understood his right to counsel and thus “knowingly waived the right to have counsel assist him at a probation violation hearing” before the order extending his probation issued.

As to the first assignment of error, we agree with defendant and, accordingly, reverse and remand. Given that disposition, we reverse the order and judgment addressed by defendant's second assignment of error because, absent defendant's conviction in the 2010 case, no “new criminal conduct” exists that would permit the imposition of probation revocation sanctions in the 2006 case.

We review a trial court's denial of a motion to suppress for legal error and defer to its findings of fact provided that there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Absent express findings of fact, and where there is evidence in the record based upon which disputed factual issues could be decided in more than one way, we presume that the trial court decided the facts in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

On March 11, 2010, Multnomah County Sheriff's Deputy Tyrus was dispatched to a Wal–Mart parking lot due to a reported vehicle break-in. Upon arrival, Tyrus spoke with the victim, who confirmed the break-in and reported that an electric “Skilsaw,” a bottle of medication, two credit cards, and over $100 worth of groceries had been stolen out of his red Ford Explorer. Tyrus then spoke with the security officer on duty at Wal–Mart, who provided him with a surveillance video of the parking lot. That video depicted, in relevant part, two people entering Wal–Mart, leaving, stopping at the victim's red Ford Explorer, removing the items in question from it, and then leaving the parking lot through a hole in a fence leading to an adjacent mobile home park. Each person in the surveillance video was wearing a distinctive article of clothing; one person was wearing a black hooded sweatshirt associated with the University of Oregon, with the word “Oregon” printed repeatedly over the entire sweatshirt, and the other was wearing a New York Yankees baseball cap “with a really unique design on it” consisting of a “diamonds and sparkles kind of thing.” After viewing the video, Tyrus obtained a printed copy of a still-frame image depicting one of the suspects' faces. He then contacted deputies Lazzini and Reed for assistance, as he knew that they “had contacts within the area.”

When Lazzini and Reed arrived, all three officers went to the mobile home park and showed the still-frame image to the officers' unnamed contact there. The contact identified the suspect depicted in that image, defendant, as “DJ” and directed the officers to defendant's residence. The three officers proceeded to that residence, and Tyrus knocked on the front door. A woman later identified as Fuller opened the door, having just woken up, and Tyrus asked her, “[Are] there two guys here?” Immediately after asking that question, and while positioned “to the side of the door” for safety reasons, Tyrus observed “one of the suspects that [he] recognize[d] from the [Wal–Mart surveillance] video”—still wearing the distinctive New York Yankees hat—walking out of the kitchen. The suspect, later identified as Pipgrass, was carrying a plate of food and a large kitchen knife.

At that point, Tyrus—still just outside the doorframe—ceased interaction with Fuller, drew his gun, and commanded Pipgrass to put down the food and knife and “get his hands up.” Pipgrass complied, Tyrus motioned for Pipgrass to walk toward him, and, as Pipgrass did so, Tyrus yelled, “Where's DJ?” Immediately thereafter, Tyrus heard a voice from an adjacent room ask, “Who the fuck is looking for DJ?” Tyrus responded, “This is the police[,]” and proceeded to enter the home with his gun drawn, followed by Reed.³ According to Tyrus's testimony, the sequence of events occurred “[p]retty quick [,]” and Fuller “g[ot] out of the way” by “slid[ing] over” against the wall just before Tyrus entered the home and as Pipgrass was moving toward the doorway pursuant to Tyrus's instructions. More specifically, Tyrus's testimony indicates that Fuller “moved against the wall” in her effort to “get[ ] out of the way” just after Tyrus—gun drawn—yelled, “Where's DJ?” while interacting with Pipgrass immediately before entering the home. For her part, Fuller testified that, upon seeing Pipgrass walk out of the kitchen, the officers, led by Tyrus, began “shoving their way in.” At no point did any of the officers request Fuller's consent to enter the home.

After stepping through the doorway, Tyrus saw defendant “building like an entertainment center in the living room off to the left.” Defendant then walked around a couch toward the officers, and Tyrus recognized him as the second suspect depicted in the surveillance video and still-frame image. Tyrus and Reed immediately arrested and handcuffed defendant and Pipgrass, both of whom “totally followed orders and were compliant” with the officers' directives. Tyrus ordered Pipgrass to sit on a couch, and in doing so he observed the distinctive University of Oregon sweatshirt depicted in the surveillance video lying on top of that couch. In order to separate the suspects, Reed immediately took defendant outside; Lazzini then seated him on a bench and read him his Miranda rights. Ultimately, defendant confessed to the crime, and the property stolen from the red Ford Explorer was found in his bedroom.⁴

After being charged with unlawful entry into a motor vehicle and second-degree theft in connection with the events of March 11, 2010, defendant moved to suppress “all oral and physical evidence obtained after the officers entered defendant's home.” A hearing was held on April 15, 2010, at which defendant argued that, among other things, the evidence should have been suppressed due to the officers' “illegal entry” into his home—that is, because the officers “entered his home without consent, exigent circumstances or an arrest warrant.” The state principally argued that exigent circumstances justified the officers' entry into defendant's home. Alternatively, it argued that Fuller's “conduct in this particular case gave consent” and further posited that Pipgrass may have been “meeting [Tyrus] halfway” and thus consenting to Tyrus's entry when Pipgrass moved forward in response to Tyrus's gesture requesting that he do so. Defe...