State v. Keys, CC 16CR24492 (SC S067691)

CourtSupreme Court of Oregon
Writing for the CourtKISTLER, S.J.
Citation368 Or. 171,489 P.3d 83
Parties STATE of Oregon, Petitioner on Review, v. Clifford Darrell KEYS, Respondent on Review.
Decision Date10 June 2021
Docket NumberCC 16CR24492 (SC S067691)

368 Or. 171
489 P.3d 83

STATE of Oregon, Petitioner on Review,
v.
Clifford Darrell KEYS, Respondent on Review.

CC 16CR24492 (SC S067691)

Supreme Court of Oregon.

Argued and submitted January 7, 2021
June 10, 2021


Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Judge, Justice pro tempore.**

KISTLER, S.J.

368 Or. 173

The primary question that this case presents is whether a defective waiver of a preliminary hearing deprives a circuit court of jurisdiction. Following Huffman v. Alexander , 197 Or. 283, 251 P.2d 87 (1952), reh'g den. , 197 Or. 283, 253 P.2d 289 (1953), the Court of Appeals held that it does. State v. Keys , 302 Or. App 514, 526, 460 P.3d 1020 (2020). The Court of Appeals accordingly considered defendant's unpreserved challenge to his waiver, found the waiver defective, and reversed his conviction. We allowed the state's petition for review to consider whether a defective waiver of a preliminary hearing is a jurisdictional defect. We hold that Huffman stands for a more limited proposition than defendant perceives and that the state constitutional provision on which he relies does not establish that a defective waiver of a preliminary hearing deprives a circuit court of subject matter jurisdiction. We accordingly reverse the Court of Appeals decision and remand this case to the Court of Appeals for further proceedings.

489 P.3d 85

The relevant facts are procedural. A deputy district attorney filed an information charging defendant with possessing methamphetamine. At arraignment, the circuit court appointed an attorney to represent defendant. After confirming defendant's identity and date of birth, defendant's attorney told the court:

"We will acknowledge receipt of the Information, waive any further reading or advice of rights. His name and date of birth are correctly set out on that document. We are prepared to waive preliminary hearing at this time, reserving the right to assert that in the future should it become necessary."

Several days later, defendant filed a motion to suppress evidence that he had possessed methamphetamine. The trial court denied the motion, and defendant agreed to a stipulated facts trial. Among other things, defendant stipulated that, during a traffic stop, an officer "observed what he believed was a small bindle of controlled substance in defendant's wallet" and that the substance tested positive for methamphetamine. Based on those and other

368 Or. 174

stipulations, the circuit court found defendant guilty of possessing methamphetamine.

On appeal, defendant did not challenge the circuit court's ruling on his suppression motion. Rather, he argued that he had not knowingly waived his right to a preliminary hearing, as the Oregon Constitution requires. See Or. Const., Art VII (Amended), § 5 (5) (providing that a person may be charged by information with a felony if a magistrate finds probable cause after a preliminary hearing or "if the person knowingly waives preliminary hearing"). Defendant noted that his attorney waived his right to a preliminary hearing only moments after she met him and before she had had a chance to speak with him about his rights. It necessarily followed, he contended, that he had not been informed of his right to a preliminary hearing and, as a result, his waiver had not been knowing.

Defendant acknowledged he had not raised that issue in the circuit court. He relied, however, on this court's decision in Huffman for the proposition that an invalid waiver of a preliminary hearing is a jurisdictional issue that can be raised for the first time on appeal. Alternatively, he argued that, even if an invalid waiver is not a jurisdictional issue, it is a plain error that the Court of Appeals not only can but must correct. The state responded that, under the Court of Appeals decision in State v. Sheppard , 35 Or. App 69, 581 P.2d 549 (1978), rev. den. , 285 Or. 1 (1979), defendant had waived his right to a preliminary hearing by proceeding to trial while being represented by counsel and without objecting to the absence of a preliminary hearing.

In analyzing the parties’ arguments, the Court of Appeals limited its decision in Sheppard to its unique procedural facts and sought to follow this court's decision in Huffman . Keys , 302 Or. App at 523-26, 460 P.3d 1020. The court began by noting that it was undisputed that defendant's waiver had failed to comply with Article VII (Amended), section 5(5), of the Oregon Constitution. Id. at 517, 460 P.3d 1020.1 In considering whether that failure was a jurisdictional problem under Huffman , the Court of Appeals acknowledged that Huffman ’s use of

368 Or. 175

the term "jurisdiction" was atypical. The court determined, however, that Huffman established that a defective waiver of a preliminary hearing deprives a circuit court of "jurisdiction to try or convict " a defendant. Id. at 523, 460 P.3d 1020 (emphasis in original). The court did not decide whether "jurisdiction to try or convict a defendant" differs from subject matter jurisdiction. Rather, the court concluded that, without a preliminary hearing or a valid waiver of a preliminary hearing, a circuit court lacks "the kind of jurisdiction that must exist for a court to try or convict a defendant and, like the absence of subject matter jurisdiction, its absence may be raised for the first time on appeal." Id. at 524, 460 P.3d 1020 (emphasis in original). The Court of Appeals accordingly reversed the trial court's judgment.

489 P.3d 86

We allowed the state's petition for review to consider that issue. We discuss the text of Article VII (Amended), section 5 (3)-(5) in greater detail below. However, to put the issue in context, we first describe those subsections briefly.2 Article VII (Amended), section 5 (3)-(5), defines how a person may be charged with a crime punishable as a felony. The charge may be initiated by a grand jury indictment. Or. Const, Art VII (Amended), § 5 (3). Alternatively, a felony charge may be initiated by a district attorney's information if the person charged appears before a circuit court judge and knowingly waives indictment. Id. § 5 (4). Finally, a felony charge may be initiated by a district attorney's information if the information is accompanied either by a preliminary hearing before a magistrate to establish probable cause or by the person's knowing waiver of a preliminary hearing. Id. § 5 (5).

368 Or. 176

Article VII (Amended), section 5 (3)-(5), requires two components to initiate a felony prosecution. First, it requires an accusatory instrument, either an indictment or an information. Second, it requires a check on the district attorney's charging authority. That check can be in the form of the grand jury's determination of probable cause, a magistrate's determination of probable cause, or the determination by the person charged, reflected in the person's waiver, that a grand jury or a magistrate's determination of probable cause is an unnecessary procedural step. See Official Voters’ Pamphlet, General Election, Nov. 5, 1974, 13 (describing a magistrate's determination of probable cause and a person's waiver of that right as coequal checks on the district attorney's charging authority).

With that background in mind, we note that this is not a case in which there was no accusatory instrument. No one disputes that the district attorney properly initiated this case by filing an information charging defendant with possessing methamphetamine. Nor does this case require us to reconsider our decision in State v. Terry , 333 Or. 163, 186, 37 P.3d 157 (2001), in which we held that a defective accusatory instrument does not deprive a circuit court of subject matter jurisdiction. Defendant does not contend that the accusatory instrument in this case was defective in any respect. Finally, we note that this is not a case in which there was no apparent waiver of a preliminary hearing. Rather, the issue in this case reduces to the question whether an invalid waiver of a preliminary hearing will deprive a circuit court of subject matter jurisdiction.3 Put differently, the question is whether a defect in the constitutional check on a district attorney's charging authority—i.e. , a defect in the defendant's waiver, a defect in the magistrate's probable cause determination, or a defect in the grand jury's probable cause determination—deprives a court of subject matter jurisdiction.

On that issue, this court has long recognized that a constitutional defect in the manner in which a grand jury is composed is not a jurisdictional problem that may be raised

368 Or. 177
...

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11 practice notes
  • State v. Palacios-Romero, A174421
    • United States
    • Court of Appeals of Oregon
    • June 29, 2022
    ...discuss the issue with defendant." Defendant cites State v. Keys , 302 Or.App. 514, 517, 460 P.3d 1020 (2020), rev'd on other grounds , 368 Or. 171, 489 P.3d 83 (2021), in which the defendant's lawyer purported to waive the defendant's right to a preliminary hearing, even though it was clea......
  • State v. Palacios-Romero, A174421
    • United States
    • Court of Appeals of Oregon
    • June 29, 2022
    ...not discuss the issue with defendant." Defendant cites State v. Keys, 302 Or.App. 514, 517, 460 P.3d 1020 (2020), rev'd on other grounds, 368 Or. 171, 489 P.3d 83 (2021), in which the defendant's lawyer purported to waive the defendant's right to a preliminary hearing, even though it was cl......
  • State v. Keys, A163519
    • United States
    • Court of Appeals of Oregon
    • November 17, 2021
    ...Judge, and Mooney, Judge. DeHOOG, J.502 P.3d 246315 Or.App. 604 This case comes to us on remand from the Supreme Court, State v. Keys , 368 Or. 171, 489 P.3d 83 (2021) ( Keys II ). In the underlying case, the trial court convicted defendant following a bench trial of one count of felony unl......
  • State v. Belleque, A169979
    • United States
    • Court of Appeals of Oregon
    • July 14, 2021
    ...instrument, either an indictment or an information" and (2) "a check on the district attorney's charging authority." State v. Keys , 368 Or. 171, 176, 489 P.3d 83 (2021).2 It is undisputed that the district attorney initiated this criminal case with an information charging defendant with UU......
  • Request a trial to view additional results
11 cases
  • State v. Palacios-Romero, A174421
    • United States
    • Court of Appeals of Oregon
    • June 29, 2022
    ...discuss the issue with defendant." Defendant cites State v. Keys , 302 Or.App. 514, 517, 460 P.3d 1020 (2020), rev'd on other grounds , 368 Or. 171, 489 P.3d 83 (2021), in which the defendant's lawyer purported to waive the defendant's right to a preliminary hearing, even though it was clea......
  • State v. Palacios-Romero, A174421
    • United States
    • Court of Appeals of Oregon
    • June 29, 2022
    ...not discuss the issue with defendant." Defendant cites State v. Keys, 302 Or.App. 514, 517, 460 P.3d 1020 (2020), rev'd on other grounds, 368 Or. 171, 489 P.3d 83 (2021), in which the defendant's lawyer purported to waive the defendant's right to a preliminary hearing, even though it was cl......
  • State v. Keys, A163519
    • United States
    • Court of Appeals of Oregon
    • November 17, 2021
    ...Judge, and Mooney, Judge. DeHOOG, J.502 P.3d 246315 Or.App. 604 This case comes to us on remand from the Supreme Court, State v. Keys , 368 Or. 171, 489 P.3d 83 (2021) ( Keys II ). In the underlying case, the trial court convicted defendant following a bench trial of one count of felony unl......
  • State v. Belleque, A169979
    • United States
    • Court of Appeals of Oregon
    • July 14, 2021
    ...instrument, either an indictment or an information" and (2) "a check on the district attorney's charging authority." State v. Keys , 368 Or. 171, 176, 489 P.3d 83 (2021).2 It is undisputed that the district attorney initiated this criminal case with an information charging defendant with UU......
  • Request a trial to view additional results

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