State v. Slight
Decision Date | 11 December 2019 |
Docket Number | A166776,A166774 (Control) |
Citation | 456 P.3d 366,301 Or.App. 237 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Daniel Martin SLIGHT, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Jason E. Thompson, Salem, 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.
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 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 135.240(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.
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) ) (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, 84 P.3d 1082 (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, 15 P.3d 22.
ORS 135.335(3) governs conditional pleas:
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.
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:
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