text:
    STATE of Oregon, Plaintiff-Respondent, v. Micus Duane WARD, Defendant-Appellant.
    A163157
    Court of Appeals of Oregon.
    Argued and submitted May 17, 2018. January 9, 2019
    Bear Wilner-Nugent, Portland, argued the cause and filed the briefs for appellant.
    Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Defendant appeals from a judgment of conviction for aggravated murder, ORS 163.095(2)(d), and felony murder, ORS 163.115(1)(b). Defendant was convicted for the murder of Jacqueline Bell, the great-grandmother of Joda Cain, defendant's cousin and the codefendant in this case. We write to address three of defendant's five assignments of error. In his first assignment of error, defendant challenges the trial court's determination that defendant was fit to proceed to trial. In his second assignment of error, defendant argues that the court erroneously denied his motion to suppress evidence that defendant contends was obtained in violation of his Miranda rights. Finally, in his fifth assignment of error, defendant challenges the constitutionality of his sentence under the Eighth Amendment to the United States Constitution. For the reasons discussed below, we reject each of those assignments of error. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

We begin with a brief summary of the facts underlying defendant's conviction and the procedural events that gave rise to the issues on appeal. In our analysis of defendant's trial competency and Miranda arguments, we provide additional facts and procedural details that are relevant to those particular issues.

Defendant was arrested and charged along with his cousin, Cain, in October 2013 for the killing of Cain's great-grandmother, Bell. Police officers discovered Bell's body in her bedroom on the morning of October 5 during a welfare check at her home. She had been bludgeoned to death with a hammer. Soon thereafter, an Oregon state trooper observed Bell's car-which was being driven by Cain and in which defendant was a passenger-weaving on the road. The officer attempted to initiate a stop. A 15-mile high-speed chase ensued. The police were eventually able to force the vehicle to a halt. Cain was arrested immediately. Defendant fled on foot but was quickly caught and arrested as well. The police found Bell's purse, wallet, and jewelry in the car. The police also found a pair of gloves belonging to Cain and a shirt and pair of shorts belonging to defendant, all of which had Bell's blood on them.

Defendant was held at the Union County Jail from October 5 until October 9, when he was transported to Washington County for his arraignment. He was charged and indicted by a grand jury for two counts of aggravated murder and two counts of felony murder. Before trial, defendant filed two motions relevant to his appeal. In the first, defendant argued that he was not fit to proceed to trial. Defendant has a lifelong intellectual disability. The trial court, concerned for defendant's fitness, initially ordered a psychological evaluation and, based on the results, determined that defendant was both unfit to proceed to trial and unsuitable for community release. The court then committed defendant to the custody of the Oregon State Hospital. As discussed in greater detail below, defendant remained there for approximately six months, at which point the state hospital recommended that the court find defendant fit to stand trial in light of the rehabilitation that had occurred during his confinement there. Defendant presented independent expert testimony challenging the possibility that he was, or could ever be, fit to proceed. Following a hearing, the court determined that defendant was competent to stand trial.

Defendant then moved to suppress statements that he had made to police officers on October 5 and on October 9, on the basis that that evidence was obtained in violation of his Miranda rights. With respect to the earlier statements, defendant argued that the officers continued to question him after he had invoked his right to remain silent. Defendant further argued that that violation tainted the interrogation on October 9, such that the trial court was also obligated to suppress any statements made on that later date. As discussed in greater detail below, the court suppressed the October 5 statements after concluding that the officers had ignored defendant's unequivocal invocation of his right to remain silent. That ruling is not at issue in this appeal. But the court denied defendant's motion to suppress the statements made at the October 9 interrogation after concluding that defendant had voluntarily waived his Miranda rights notwithstanding the earlier violation.

Defendant was subsequently tried and found guilty by a jury on both charges. The jury, having been instructed to consider mitigating factors, handed down a sentence of life without the possibility of parole. Arguing that the Eighth Amendment categorically prohibits imposing a true life sentence on a person with an intellectual disability, defendant moved the sentencing court for the more lenient sentence of life with the possibility of parole after defendant has served the minimum term of 30 years, ORS 163.105(1)(c). The sentencing court merged the guilty verdicts into a single conviction for aggravated murder and denied the motion to impose less than the jury's sentence. As a result, defendant was sentenced to life without the possibility of parole. That sentence was duly imposed, and defendant appealed.

II. ANALYSIS

On appeal, defendant raises the assignments of error described above. We address each in turn, providing additional facts as necessary to explain our decision on each of those three assignments.

A. Defendant's First Assignment of Error

In his first assignment of error, defendant contends that the trial court erroneously determined that he was fit to proceed to trial. After defendant was arrested and charged, defense counsel became concerned that defendant was intellectually disabled and not competent for trial. Defendant moved to have the trial court determine whether he was competent. He made an initial showing in support of that motion in the form of three psychological evaluations that demonstrated that defendant was likely intellectually disabled. The court granted defendant's motion to hold a competency hearing. Defendant was transported to the Oregon State Hospital so that the state could evaluate him and render an opinion on his trial fitness. Defendant remained in the state hospital for approximately six months. During that time, he was formally evaluated three times by Dr. Stover, a psychologist employed by the state hospital. Based on his first two evaluations, Stover concluded that defendant was not yet fit to proceed but could be restored to fitness. Based on his third evaluation, and in light of defendant's day-to-day conduct and behavior at the state hospital, Stover concluded that defendant had been rehabilitated and now met the minimum standards for competency. Defendant challenged Stover's conclusions. Defendant maintained that he was not fit to proceed to trial and could not be restored to competence. He supported that contention with a report from Dr. Froming, a psychologist retained by defendant to independently evaluate defendant's competence. The court held a hearing pursuant to ORS 161.370, with experts from both sides presenting competing perspectives on defendant's trial fitness. The experts agreed that, clinically, defendant had a "mild intellectual disability." But they disagreed, based on their subjective evaluations of the testing data and their in-person interviews of defendant, whether defendant's condition rendered him unfit for trial.

Following the hearing, the trial court concluded that defendant was fit to proceed to trial. The court found, based on the testimony and evidence presented at the competency hearing, that

"defendant has the ability to communicate with his counsel in a meaningful way. He understands the nature of the proceedings against him and the role he plays as a defendant in this case. He has the ability to make decisions intelligently that affect his case. And he has adequate memory about the incident and things that will happen in the course of the trial to participate in his defense."

Defendant challenges that decision on appeal. His primary contention is that the trial court committed legal error because there was insufficient evidence to support the court's finding of fitness to proceed to trial. Defendant argues that the evidence of his intellectual disability proved that he was not, and could never be, fit to stand trial as a matter of law.

The state does not dispute that defendant is intellectually disabled but argues that that alone does not resolve whether defendant was competent to stand trial. The state contends that there is sufficient evidence in the record to support the trial court's conclusion that defendant met the minimum standard for competency to stand trial.

The minimum competency standard-the one required by federal due process for every criminal defendant-was announced in Dusky v. United States , 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Under the so-called Dusky standard, a criminal defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." Id . at 402, 80 S.Ct. 788 ; see also Drope v. Missouri , 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (trial fitness involves the "capacity to understand the nature and object of the proceedings[,] * * * to consult with counsel, and to assist in preparing [a] defense" (citing Dusky , 362 U.S. 402, 80 S.Ct. 788 ) ). The Dusky standard is a "modest" one that "seeks to ensure that [a defendant] has the capacity to understand the proceedings and to assist counsel." Godinez v. Moran , 509 U.S. 389, 402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

Oregon's statutory standard has similar requirements to the Dusky standard. Under ORS 161.360(2),

"[a] defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable:
"(a) To understand the nature of the proceedings against the defendant; or
"(b) To assist and cooperate with the counsel of the defendant; or
"(c) To participate in the defense of the defendant."

Both defendant and the state contend that ORS 161.360(2) codifies the minimum due process standard stated in Dusky . We accept that argument for the purpose of this appeal.

See also State v. Simon , 294 Or. App. 840, 865, 433 P.3d 385 (2018) ("The statutory standard under ORS 161.360(2) implies the same standard [as Dusky ]."). We proceed to determine whether there was sufficient evidence to support the trial court's conclusion that defendant was fit to proceed to trial in light of the above-stated factors.

The trial court in this case was confronted with determining defendant's competency based in substantial part on the competing opinions of two qualified experts. On appeal, as at the competency hearing, defendant relies primarily on Froming's testimony but also cites to the testimony of others who observed defendant at various points in his life and could comment on his level of intellectual functioning. In response, the state highlights Stover's testimony and argues that he provided sufficient evidence to support the court's competency determination.

In his final report recommending that the trial court find defendant competent to stand trial, Stover summarized his conclusions as follows:

"[Defendant] is not impacted by [his] mild intellectual disability to the extent that substantially interferes with his abilities to assist and cooperate with his attorneys, decide how to plead, appreciate the criminal confession embedded in a guilty plea, rationally foresee the consequences of pleading guilty versus not guilty, decide whether to testify, share his impressions with his attorneys about the content of court hearings, or elicit their explanation about aspects of hearings that he does not understand, if he chooses to do so.
"It is my professional opinion that [defendant] understands the nature of the proceedings against him, is capable of assisting and cooperating with defense counsel, and is capable of participating in his defense. He is able to make decisions relevant to his case in a rational and autonomous manner. I respectfully recommend the Court find him trial competent."

Stover's testimony at the competency hearing explained the bases for his conclusion. Stover testified that he had evaluated defendant three times over the approximately six months that defendant had spent at the state hospital. Each time, Stover noted meaningful improvements in defendant's ability to communicate and display rational and autonomous decision-making. For example, defendant provided increasingly sophisticated and rational responses when Stover posed him with a question based on hypothetical legal scenarios unrelated to defendant's case. Stover also spoke with defendant in the presence of defendant's attorneys and was able to observe his interactions with them. Based on those observations, Stover concluded that defendant could communicate "rationally and intelligently enough to assist his attorneys." After his third and final evaluation, Stover was convinced that defendant had a sufficient understanding of the case against him and the role that he and other relevant persons played in the proceedings as well as the capacity to communicate and make rational, autonomous decisions related to his case.

Stover did acknowledge that defendant "has a very real disability that has impacted him from very early on up to this point and will continue to impact him for the rest of his life." As a result, defendant would need accommodations at trial, including the opportunity to confer more frequently with his counsel than perhaps a defendant of more average intellectual ability to ensure that he understood what was happening and was able to offer his input. But, with the proper guidance, Stover was confident that defendant possessed the ability to adequately process information, communicate with his attorneys, and assist in his defense. Ultimately, Stover reiterated his conclusion that defendant was fit to stand trial.

Froming reached the opposite conclusion. Her report concluded that,

"[w]hile [defendant] may be able to rehearse and memorize the actors in the legal context, his ability to assist in a rapidly progressing, highly verbal context of the courtroom is not possible. His language disorder, comprehension level, concreteness and impaired abstract reasoning make it impossible to track, respond, and hold the complex elements in mind to make clear and reasoned decisions or to relay clear and reasoned responses to his attorney's inquiries. It is this examiner's opinion that [defendant] is not competent nor will he be restorable due to the nature of his intellectual and neuropsychological deficits and the requirements of the courtroom."

Froming testified at the competency hearing to explain her conclusion. Froming testified about the various tests that she had administered to defendant to gauge the nature and extent of his intellectual disability. She indicated that defendant scored poorly-often in the moderately-to-severely impaired or low-average range-on tests designed to assess, among other things, memory, executive functioning, and language-related abilities. Defendant also scored in the mildly impaired range on the "Cast MR test," which is specifically designed to test trial competency, although Froming acknowledged that that test was "older" and "not a great test." Similarly, when Froming administered the MacArthur Competence Assessment Tool, which also is used to assess trial competence, defendant had "minimal to no impairment" in reasoning and understanding but "clinically significant impairment" in "decisional capacity and the ability to weigh things." Finally, defendant scored between 59 and 65 on multiple IQ tests, which was below the cutoff of 70 for a clinical diagnosis of "mild retardation." In light of the totality of the test results and her own observations of defendant, Froming concluded that defendant was not fit to proceed and likely could never achieve trial competency.

Based on the evidence presented at the competency hearing, we conclude that the trial court had sufficient evidence to support its determination that defendant met the standard for competency to stand trial under ORS 161.360(2). See Simon , 294 Or. App. at 867, 433 P.3d 385 ("We review [competing determinations] only to determine if the record is sufficient to support the decision that the trial court reached."). As recited above, the court found that

"defendant has the ability to communicate with his counsel in a meaningful way. He understands the nature of the proceeding against him, and the role he plays as a defendant in this case. He has the ability to make decisions intelligently that affect his case. And he has adequate memory about the incident and things that will happen in the course of the trial to participate in his defense."

Those findings account for the competency factors codified by ORS 161.360(2) and are supported by evidence in the record-particularly Stover's report and testimony but also elements of Froming's testimony as well. In short, the record contains ample evidence to support the court's conclusion that defendant had a sufficiently rational and factual understanding of the proceedings against him and was able to participate in his defense.

Defendant essentially seeks to have us reweigh the evidence and reach our own conclusions regarding defendant's trial fitness. Certainly, there is evidence in the record that supports defendant's position that he was not fit for trial, including evidence that defendant's rational understanding and capacity to aid and assist in his defense were unsophisticated or below average. Had the trial court weighed the available evidence differently, it perhaps could have concluded that defendant was not competent for trial. But the court, engaging in its role as the trier of fact and ultimate decision-maker, determined that the state presented sufficiently compelling evidence that defendant was, in fact, competent. See id. at 866-67, 433 P.3d 385 (describing the trial court's responsibility for competency determinations). Further, the record reflects that the court adequately considered the relevant statutory and constitutional factors when making that determination. Finally, contrary to defendant's argument on appeal, there is nothing to suggest that the court selectively "cherry-picked" the evidence to support its competency determination. Instead, the record demonstrates that the court looked at the totality of the evidence and determined that the evidence that defendant was fit for trial was more persuasive than evidence to the contrary.

Our task on appeal is not to make an independent determination of defendant's capacity to stand trial. Id. at 867, 433 P.3d 385 ("Our role in reviewing the trial court's [competency] decision is not to reweigh or assess whether the evidence supports factual findings different from those made by the trial court."). The record in this case supports the trial court's determination that defendant was fit to proceed to trial, and we are not convinced that the court was required as a matter of law to reach a different conclusion based upon the available evidence. We therefore reject defendant's first assignment of error.

B. Defendant's Second Assignment of Error

In his second assignment of error, defendant argues that the trial court erroneously denied his motion to suppress statements that he had made to two police officers during his October 9 interrogation because those statements were obtained in violation of defendant's right against self-incrimination under Article I, section 12, of the Oregon Constitution. We review a denial of a motion to suppress for legal error, accepting the court's findings of fact that are supported by constitutionally sufficient evidence in the record. State v. Wilson , 291 Or. App. 581, 583, 422 P.3d 402, rev. den. , 363 Or. 600, 427 P.3d 191 (2018). We review only the evidence presented at the suppression hearing and recite the following facts consistently with the trial court's express and implied factual findings. State v. Norgren , 287 Or. App. 165, 166, 401 P.3d 1275 (2017), rev. dismissed , 363 Or. 40, 419 P.3d 726 (2018).

Defendant and his codefendant, Cain, were arrested on October 5, the night of Bell's murder. The arresting officers read defendant his Miranda rights immediately following his arrest, and defendant acknowledged that he understood his rights. Defendant was then brought to the Union County Jail in La Grande. He was again read his Miranda rights by Officer Retherford and then interrogated by Retherford and Officer Aydelotte. At the start of the interrogation, defendant indicated that he did not want to speak to the officers when Retherford asked if defendant was going to "visit with" them. The officers then spoke to defendant for several minutes. In particular, they told defendant that Cain had pinned the killing on defendant, and they encouraged defendant to give his side of the story. Defendant said very little, did not make any directly inculpatory statements, and did not otherwise invoke his Miranda rights.

Defendant remained in custody in Union County for four days. On October 9, Detectives Anderson and Rookhuyzen arrived to transport defendant to Washington County for his arraignment. The detectives advised defendant of his Miranda rights in the Union County Jail, and defendant confirmed that he understood his rights. The 300-mile drive to Washington County lasted less than five hours. The detectives had no meaningful interactions with defendant during the drive. When they arrived in Washington County between four and five hours later, the detectives interrogated defendant for approximately one hour in a "soft" interrogation room. That is, unlike a jail interview room that may be bare with hard floors and chairs, this interview room was carpeted and had couches. Defendant denied any involvement in the murder but made a number of factually disprovable statements that, as the state concedes, were evidence of defendant's consciousness of guilt. According to the officers, the interrogation was "relaxed" and conversational, and the officers did not resort to aggressive or threatening tactics when questioning defendant. At no point did defendant indicate that he was having trouble understanding the questions asked of him, nor did he appear to be "impaired" in any way. The detectives did not read defendant his Miranda rights immediately prior to or at any time during the interrogation, and defendant never affirmatively waived his Miranda rights.

Defendant moved to suppress the statements that he made following his invocation of his right to remain silent on October 5 as well as all statements made during the October 9 interrogation. At the suppression hearing, the trial court reviewed a video recording of the October 5 interrogation, determined that defendant had unequivocally invoked his right to remain silent when he indicated to the officers that he did not want to speak to them, and suppressed defendant's post-invocation statements.

The trial court also heard testimony from Anderson and Rookhuyzen, who had read defendant his Miranda rights and transported and interrogated defendant on October 9. The court concluded that the October 5 violation did not render defendant's statements on October 9 inadmissible. Further, the court determined that the officers provided defendant with a Miranda warning prior to the October 9 interrogation and that defendant had validly waived his Miranda rights. The court then denied defendant's motion to suppress statements made during the latter interrogation.

Defendant raises two arguments on appeal. First, he contends that any statements that he made under interrogation on October 9 must be suppressed as the product of the undisputed Miranda violation on October 5. Second, he asserts that the temporal gap between the Miranda warning on October 9 and the interrogation that followed, when considering the totality of the circumstances, rendered his implicit Miranda waiver involuntary. We address each contention in turn.

To protect the right against self-incrimination guaranteed by Article I, section 12, police officers must give Miranda warnings to persons in custody or other compelling circumstances. State v. McAnulty , 356 Or. 432, 454-55, 338 P.3d 653 (2014) (citing Miranda v. Arizona , 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). If a person unequivocally invokes his or her right to remain silent, police must honor that invocation and immediately cease all questioning. Id. at 455, 338 P.3d 653. On appeal, the state does not challenge the trial court's ruling that defendant unequivocally invoked his right to remain silent on October 5 when he indicated that he did not want to talk and that Retherford and Aydelotte violated that right when they continued to question him. We proceed under the assumption that the officers violated defendant's right to remain silent, although we do not separately decide the issue.

Even if an officer violates Miranda by continuing to question a suspect after he or she has invoked the right to remain silent, the suspect retains the ability to later waive his or her Miranda rights "as long as that waiver is knowing, intelligent, and voluntary under the totality of the circumstances." Id . A caveat is that, in some circumstances, a Miranda waiver may be tainted by a prior Miranda violation. To protect against that risk, the trial court must suppress statements made in direct response to an impermissible post-invocation interrogation as well as "evidence that derives from or is a product of that constitutional violation," which may include statements made by the defendant at subsequent interrogations. State v. Jarnagin , 351 Or. 703, 713, 277 P.3d 535 (2012). Such evidence must be suppressed because it cannot properly be seen as the product of a truly voluntary waiver of the right against self-incrimination.

In evaluating whether a waiver of the right to remain silent following a Miranda violation is truly voluntary, we consider such relevant factors as

"the nature of the violation, the amount of time between the violation and any later statements, whether the suspect remained in custody before making any later statements, subsequent events that may have dissipated the taint of the earlier violation, and the use that the state has made of the unwarned statements."

Id. at 716, 277 P.3d 535. The inquiry is fact intensive and requires us to decide "whether, considering all the circumstances, a defendant's later decision to speak to officers is sufficiently a product of an earlier Miranda violation that suppression is necessary to vindicate the defendant's Article I, section 12, rights." Id. at 717, 277 P.3d 535.

Applying that framework to this case, we conclude that defendant voluntarily waived his rights on October 9 and that his statements were not derived from or a product of the Miranda violation on October 5. We first consider the nature of the violation. Id. at 716, 277 P.3d 535. We acknowledge that the severity of the violation on October 5 was not insignificant. To ignore a defendant's invocation of the right to remain silent is necessarily a serious infringement on that person's constitutional rights. Even so, the nature of the violation in this case was not especially "flagrant." See id. at 717, 277 P.3d 535. The officers' conduct did not, for example, involve "advis[ing the] defendant of his Miranda rights and then proceed[ing] to question him despite his repeated requests for counsel," id . (citing State v. Mendacino , 288 Or. 231, 238, 603 P.2d 1376 (1979) ), or entail erroneously telling the defendant that he was not yet entitled to an attorney and then subjecting him to "rigorously structured and 'focused' * * * interrogation" that "elicited patently inculpatory responses" despite an unequivocal invocation of Miranda rights, State v. Koch , 267 Or. App. 322, 332, 341 P.3d 112 (2014). Although the interrogation continued for several minutes after defendant invoked his right to remain silent, the officers did not use flagrantly coercive tactics in an effort to elicit an incriminating response. In fact, defendant maintained his innocence throughout the exchange and made no patently inculpatory remarks. For those reasons, and especially in light of the other factors discussed below, the nature of the violation does not weigh heavily in favor of suppressing statements made during the subsequent interrogation.

A related factor is that the Miranda violation did not result in an inadmissible confession that might lead a defendant to believe that he had "let the cat out of the bag" and could "never thereafter [be] free of the psychological and practical disadvantages of having confessed." See Mendacino , 288 Or. at 237, 603 P.2d 1376 (citing United States v. Bayer , 331 U.S. 532, 540-41, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947) ). Because defendant maintained his innocence despite the violation of his Miranda rights, the practical and psychological effects of that violation are less pernicious and less likely to render a future Miranda waiver involuntary.

Jarnagin 's second consideration is temporal. The time between a Miranda violation and a subsequent waiver is relevant because a sufficient temporal gap can "break the causal chain" between the two.

Koch , 267 Or. App. at 332-33, 341 P.3d 112. Here, there was a clear, uninterrupted, multi-day gap between the violation and subsequent questioning, which weighs against suppression. See Jarnagin , 351 Or. at 718, 277 P.3d 535 ("[A] change in time and circumstances can be sufficient to dissipate the effects of an earlier Miranda violation."); cf. State v. Boyd , 360 Or. 302, 321, 380 P.3d 941 (2016) (holding that a Miranda waiver was involuntary where there was "no break at all" between the unlawful interrogation and the waiver); McAnulty , 356 Or. at 458 (holding that a Miranda waiver was involuntary where additional statements were obtained "immediately after" a Miranda violation).

With respect to Jarnagin 's third consideration, defendant remained in custody between the Miranda violation and his subsequent statements on October 9. That fact does weigh in favor of suppression because it increases the likelihood that the violation rendered the subsequent waiver involuntary. See State v. Schrepfer , 288 Or. App. 429, 438, 406 P.3d 1098 (2017) (concluding that the defendant did not voluntarily waive his Miranda rights following a violation thereof, in part because "there was no material change in circumstances and defendant remained in custody throughout the encounter"). However, defendant's ongoing custodial status carries less weight in light of Jarnagin 's fourth consideration-whether subsequent events dissipated the taint of the earlier violation. Here, the second interrogation occurred in an entirely different location and was conducted by different police officers. That change in time, location, and personnel worked to distinguish the two interrogations and dissipate the effects of the Miranda violation. See Mendacino , 288 Or. at 237, 603 P.2d 1376 ("The removal of the improper conditions generally involves a change in time and location sufficient to dissipate the pernicious effects of the unlawful conduct."); cf. McAnulty , 356 Or. at 458, 338 P.3d 653 (holding that the defendant's statements were "an extension of the statements illegally obtained during her first interrogation," in part because "there was no significant temporal break, and the same parties were present in the same room").

In addition, the officers read defendant his Miranda rights hours before the interrogation on October 9. If the Miranda violation on October 5 had the potential to taint subsequent questioning by the police, that risk was mitigated once the officers gave defendant a fresh opportunity to invoke his rights. McAnulty , 356 Or. at 459, 338 P.3d 653 (holding that a Miranda waiver made following several earlier Miranda violations was voluntary, in part because the "defendant was [provided with a fresh Miranda warning] before any [subsequent] statements were obtained"); cf. Jarnagin , 351 Or. at 718, 277 P.3d 535 (holding that a Miranda waiver was involuntary due to an earlier Miranda violation, in part because "[n]o advice of Miranda rights intervened to break the causal chain" between the violation and the waiver).

Jarnagin 's fifth consideration requires us to consider the use that the officers made of defendant's post-invocation statements made on October 5 during the October 9 interrogation. In Jarnagin , for example, the Supreme Court determined that the defendant had not voluntarily waived his Miranda rights when he allowed the police to videotape a reenactment of "the very events that he had described the night before in violation of his [ Miranda ] rights." 351 Or. at 718, 277 P.3d 535. The court explained that suppression of the videotape was necessary despite the defendant's apparent waiver because "[n]ot only did the video reenactment memorialize on film the statements obtained in violation of defendant's rights the night before, but defendant's unwarned statements * * * became, in effect, the script that he acted out the next day while the officers videotaped him." Id. ; see also State v. Moore/Coen , 349 Or. 371, 385, 245 P.3d 101 (2010) (focusing on the state's use of the defendants' unwarned statements at trial to determine whether those statements "tainted" the defendants' subsequent trial testimony).

Here, by contrast, it does not appear that, during the October 9 interrogation, Anderson and Rookhuyzen were even aware of the substance of defendant's post-invocation statements on October 5, let alone exploited anything defendant said or did during the October 5 interrogation. According to Anderson's testimony at the suppression hearing, he knew defendant had been interrogated on October 5 but was unaware of any details of what had been said. Anderson did not know that defendant had possibly invoked his right to remain silent until after he received Retherford's written report on October 29, almost three weeks after Anderson and Rookhuyzen had interrogated defendant. There is no evidence that Anderson and Rookhuyzen meaningfully relied on defendant's post-invocation statements to elicit further statements during the October 9 interrogation. For those reasons, Jarnagin 's fifth consideration weighs against suppression.

In addition to the foregoing argument, defendant also contends that "the delay between the readministration of Miranda warnings in La Grande on October 9 and the interview five hours later in Hillsboro by itself worked a significant constitutional violation." To determine whether a defendant must be re-advised of his or her Miranda rights following an initial warning, "we look at whether, under the totality of the circumstances, a reasonable person could believe that his or her rights have changed since the time they were originally given." State v. Field , 231 Or. App. 115, 121, 218 P.3d 551 (2009). Although the amount of time that elapsed between a Miranda warning and a subsequent interrogation is relevant to that inquiry, there is no "per se rule that a suspect must be re-advised" of his or her Miranda rights "based merely on the passage of time." Id .

Here, defendant was read his Miranda rights approximately five hours before the October 9 interrogation and acknowledged that he understood his rights. Although that is not an insignificant amount of time, we have previously determined that similar gaps did not require police to readminister Miranda warnings. See, e.g. , State v. Hurtado-Navarrete , 258 Or. App. 503, 508-09, 309 P.3d 1128, rev. den. , 354 Or. 656, 318 P.3d 1144 (2013) (police not required to readminister Miranda warnings before custodial interrogation when warnings were given "less than a day" before the interrogation); Field , 231 Or. App. at 122, 218 P.3d 551 (police not required to readminister Miranda warnings before custodial interrogation when warnings were given "several hours" before the interrogation).

Additionally, the warning given to defendant was not limited in scope, and there was no implication that defendant could not invoke his rights at any time he chose. Cf. Hurtado-Navarrete , 258 Or. App. at 510, 309 P.3d 1128 (police not required to readminister Miranda warnings before custodial interrogation, in part because "none of [the prior] warnings were limited in scope"). Finally, Anderson and Rookhuyzen administered the October 9 warning and also conducted the subsequent interrogation, the subject matter of the interrogation-whether defendant was involved in Bell's murder-was the sole basis for defendant's interactions with the officers, and defendant was never outside the presence of Anderson and Rookhuyzen from the time they advised him of his Miranda rights until the interrogation began. Cf. id. (police not required to readminister Miranda warnings, in part because "the last warning was given in circumstances that were materially indistinguishable from those in which the later statements were made; that is, both involved interrogations conducted by the same two detectives regarding the same subject matter"). Under those circumstances, a reasonable person could not believe that his or her Miranda rights had changed since the warning was provided.

Assuming that the police violated defendant's right to remain silent on October 5 when they continued to question him after he invoked that right, we conclude that any statements that defendant made during the October 9 interrogation were not "derived from" or "a product of" that earlier constitutional violation. In addition, defendant was given Miranda warnings approximately five hours before the October 9 interrogation, and the totality of the circumstances did not require the police to readminister Miranda warnings closer in time to the interrogation. There was also constitutionally sufficient evidence for the trial court to find that defendant had knowingly and voluntarily waived his right to remain silent on October 9. For those reasons, we conclude that the trial court did not err when it denied defendant's motion to suppress. We therefore reject defendant's second assignment of error.

C. Defendant's Fifth Assignment of Error

In his final assignment of error, defendant argues that sentencing a person with intellectual disabilities to life in prison without the possibility of parole, as occurred here, constitutes cruel and unusual punishment proscribed by the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, defendant contends that recent United States Supreme Court case law compels the conclusion that an intellectually disabled defendant, based on that status alone, cannot be sentenced to life without parole. For its part, the state does not contest that defendant has an intellectual disability but contends that that case law upon which defendant relies does not compel the result that defendant seeks. As discussed below, we reject defendant's argument that United States Supreme Court case law prohibits defendant's sentence. The prohibition on cruel and unusual punishment "guarantees individuals the right not to be subjected to excessive sanctions." Roper v. Simmons , 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). The concept of proportionality is central to that right. Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In recent years, the United States Supreme Court has limited the imposition of the death penalty and life sentences without parole for certain categories of individuals.

That development in the Court's Eighth Amendment jurisprudence began with Atkins v. Virginia , in which the Court held that the execution of "mentally retarded" criminals is cruel and unusual punishment prohibited by the Eight Amendment. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In reaching that conclusion, the Court explained that "retribution and deterrence" were the primary purposes served by the death penalty, and there was a "serious question as to whether either justification * * * applies to mentally retarded offenders." Id. at 318-19, 122 S.Ct. 2242 (citing Gregg v. Georgia , 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ). With respect to the former purpose, the Court reasoned that "the lesser culpability of the mentally retarded offender surely does not merit that form of retribution," which is otherwise reserved only for the most "depraved" murderers. Id. (citing Godfrey v. Georgia , 446 U.S. 420, 433, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) ). With respect to deterrence, the Court explained that "the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable * * * also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." Id. at 320, 122 S.Ct. 2242.

The Court subsequently extended additional Eighth Amendment protections to juvenile offenders. In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Court considered whether a juvenile offender could face a mandatory sentence of life without the possibility of parole following a conviction for murder. The Court recognized "two strands of precedent reflecting [its] concern with proportionate punishment." Id. at 470, 132 S.Ct. 2455. The first strand involves "categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty." Id . Examples include Atkins , which held that imposing the death penalty on intellectually disabled defendants violates the Eighth Amendment; Roper , which held that the Eight Amendment bars capital punishment for juveniles; and Graham , which held that the Eighth Amendment also prohibits a sentence of life without the possibility of parole for juveniles who committed nonhomicide offenses. See id . (summarizing those decisions).

The Miller Court explained that Graham also analogized "life without parole for juveniles to the death penalty itself, thereby evoking a second line of [the Court's] precedents." Id . Those cases are ones where the Court has "prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death." Id. (citing Lockett v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Woodson v. North Carolina , 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ). That is, the Court required "individualized sentencing when imposing the death penalty." Id. at 475, 132 S.Ct. 2455. To that end, "capital defendants [must] have the opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses." Id . at 475-76, 132 S.Ct. 2455. Of particular note, "the background and mental and emotional development of a youthful defendant must be duly considered in assessing his culpability." Id. at 476, 132 S.Ct. 2455.

By that same logic, the Miller Court determined that mandatory life-without-parole sentencing schemes for juvenile offenders impermissibly "preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id . To alleviate that concern, the Court held that the sentencing authority must have the opportunity to make an individualized determination whether a sentence of life without parole is appropriate when a juvenile is convicted of homicide. Id. at 479, 132 S.Ct. 2455 ; see Kinkel v. Persson , 363 Or. 1, 15-16, 417 P.3d 401 (2018) (summarizing individualized sentencing requirement announced in Miller ). The Court cautioned that "appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon," particularly because of the "great difficulty * * * of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." 567 U.S. at 479, 132 S.Ct. 2455. The Court, however, did not consider the defendant's "alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those age 14 and younger." Id .

Later, in Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Court concluded that Miller announced a substantive limitation as well as a procedural requirement of individualized sentencing for juveniles convicted of homicide. The Court explained that,

"[e]ven if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crimes reflect 'unfortunate yet transient immaturity.' Because Miller determined that sentencing a child to life without parole is excessive for all but 'the rare juvenile offender whose crime reflects irreparable corruption,' it rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status'-that is, juvenile offenders whose crimes reflect the transient immaturity of youth."

Id. at ----, 136 S.Ct. at 734 (citations omitted).

Here, defendant relies on Atkins and Miller to argue that the Eighth Amendment categorically prohibits the imposition of even a nonmandatory sentence of life without the possibility of parole on intellectually disabled adult homicide offenders based on that status alone. Specifically, he contends that Miller compels the extension of the categorical ban on the death penalty for intellectually disabled offenders announced in Atkins to cases in which intellectually disabled offenders face a potential sentence of life without parole. Intellectually disabled adult offenders, defendant reasons, are similar to juvenile offenders, in that both have underdeveloped brains and are necessarily less morally culpable than nonintellectually disabled adults.

Defendant's argument is unavailing because Supreme Court precedent does not support defendant's proposed constitutional rule. Defendant implicitly argues that Atkins and Miller ineluctably lead to the categorical conclusion that life without the possibility of parole is an unconstitutional sentence for intellectually disabled offenders regardless of their crime of conviction or the sentencing authority's consideration of the defendant's characteristics. But the holding in Atkins was expressly limited to prohibiting the death penalty for intellectually disabled offenders and cannot be read on its own to limit the imposition of less severe penalties. Meanwhile, Miller does not categorically prohibit a sentence of life without parole for juveniles who commit homicide crimes. Instead, as described, Miller proscribes sentencing laws that impose a mandatory life sentence without parole on juvenile homicide offenders but leaves open the possibility of such a sentence where the sentencing authority has adequately considered mitigating circumstances, including the defendant's youth, and determined that the youth's crime reflected "irreparable corruption" rather than the "transient immaturity" of youth. Miller , 567 U.S. at 479, 132 S.Ct. 2455 ; see Kinkel , 363 Or. at 16-17, 417 P.3d 401 (summarizing that aspect of Miller ). In other words, the constitutional problem that the Court resolved in Miller is that mandatory life sentences for juvenile homicide offenders prevent the sentencing authority "from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender." 567 U.S. at 474, 132 S.Ct. 2455.

Even if we assume that the same substantive limitations and procedural requirements announced in Miller apply when the court sentences an intellectually disabled adult homicide offender, defendant does not argue that the trial court erred with respect to its adherence to those limitations or requirements. He does not, for example, contend that the trial court failed to make an individualized sentencing determination on the record or argue that the jury or court declined to account for defendant's intellectual disability when imposing its sentence. Defendant instead argues that Miller requires a categorical constitutional bar on life-without-parole sentences for the intellectually disabled. Even the broadest reading of Miller and the Supreme Court's related jurisprudence does not compel such an outcome.

III. CONCLUSION

To summarize, we first conclude that the trial court did not err when it determined that defendant was fit to proceed to trial. The court adequately considered the appropriate competency factors supplied by state and federal law, and its ultimate determination was supported by sufficient evidence in the record. Second, the court did not err when it denied defendant's motion to suppress statements made during the October 9 interrogation. The evidence presented at the suppression hearing supported the court's conclusion that defendant voluntarily waived his Miranda rights. Finally, the United States Supreme Court has not concluded either directly or by implication that the Eighth Amendment categorically prohibits sentencing an adult homicide offender with intellectual disabilities, like defendant, to life in prison without the possibility of parole. As a result, the trial court did not err in rejecting defendant's argument to the contrary and imposing the jury's sentence of life without the possibility of parole.

Affirmed.

      Cain was tried separately from defendant and convicted of first-degree manslaughter.

      We reject defendant's third and fourth assignments of error without further written discussion.

      The Eighth Amendment bars the infliction of "cruel and unusual punishment."

      A defendant convicted of aggravated murder in Oregon may be sentenced to death if the state chooses to pursue that penalty. ORS 163.105(1)(a). Due to defendant's intellectual disability, the state did not seek the death penalty in this case. See Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits sentencing intellectually disabled offenders to death).

      ORS 161.370 provides, in part:
      "(1) When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. * * * If the finding [in the report regarding defendant's fitness to proceed prepared by the certified evaluator pursuant to ORS 161.365 ] is contested, the court shall hold a hearing on the issue. If the report is received in evidence in the hearing, the party who contests the finding has the right to summon and to cross-examine any psychiatrist or psychologist who submitted the report and to offer evidence upon the issue. Other evidence regarding the defendant's fitness to proceed may be introduced by either party."

      Article I, section 12, provides, in relevant part, that "no person shall * * * be compelled to testify against himself." Defendant briefly references the same right under the Fifth Amendment to the United States Constitution, but he does not provide any distinguishable argument or analysis under the federal right. The state also does not undertake any separate analysis. We therefore limit our review to the right under the Oregon Constitution. See State v. Turnidge , 359 Or. 364, 399 n. 21, 374 P.3d 853 (2016) ("On review, defendant only briefly cites the Fifth Amendment and does not offer any developed argument in support of his reliance on it. We therefore do not address it.").

      The precise nature of those statements is uncertain based on the record from the suppression hearing. The trial court watched a video recording of the interrogation only up to the point where defendant invoked his right to remain silent. There is no indication that the court also was provided with a transcript of the interrogation or otherwise reviewed what defendant said to the police after invoking his rights under Miranda .

      The Fourteenth Amendment applies the Eighth Amendment prohibition on cruel and unusual punishment to the states and forms the basis of defendant's argument. In his opening brief, defendant does not also base his argument on appeal on Oregon's constitutional prohibition on disproportionate sentences, Article I, section 16. Thus, we do not address any issue under the Oregon Constitution.

      For the purpose of this opinion, "mentally retarded" and "intellectually disabled" are synonymous terms. The latter is a contemporary variation of the former that represents a societal improvement in terminology rather than a clinical or diagnostic change.

      Defendant was sentenced under ORS 163.105, which provides sentencing options for aggravated murder. The sentencing proceeding is conducted "before the trial jury as soon as practicable" after the guilt phase. ORS 163.150(1)(a). The sentencing options are "death, life imprisonment without the possibility of release or parole or life imprisonment." ORS 163.105(1)(a). The statute goes on to establish that a sentence of "life imprisonment" means that the court "shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp." ORS 163.105(1)(c). Following that minimum period of confinement, the state Board of Parole and Post-Prison Supervision may convert the defendant's sentence to "life imprisonment with the possibility of parole, release to post-prison supervision or work release" if the board finds that "the prisoner is capable of rehabilitation." ORS 163.105(3). Here, the jury chose life imprisonment without the possibility of parole and the trial court refused to impose a lesser sentence. See ORS 163.150(2) (discussing jury's consideration of sentence in aggravated murder trial). The jury considered a number of mitigating factors presented to them by defendant during the sentencing phase, including defendant's intellectual disability. Defendant does not contend that the sentencing authority failed to consider his intellectual disability in sentencing or that his particular circumstances could not lead to a true life sentence. We do not address those issues. Rather, we reject defendant's categorical argument.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF AUGUST C. FUNKE TRUST.
    John Keller and William Keller, Appellants, v. Michael J. Healy, Katelyn C. Shamrell, and Jaclyn J. James, Respondents.
    A166155
    Court of Appeals of Oregon.
    Submitted September 7, 2018. March 13, 2019
    Lawrence K. Peterson and Glazer, Maurer & Peterson, PC; and Michael A. Cox and Law Office of Michael A. Cox filed the briefs for appellants.
    Michael J. Healy, Katelyn C. Shamrell, and Jaclyn J. James, pro se, filed the brief for respondents.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Trustees appeal a general judgment entered after the trial court ordered trustees to make distributions to beneficiaries from an educational trust and to personally reimburse the trust for the legal costs that beneficiaries incurred. On appeal, trustees initially raised four assignments of error, but later withdrew their second assignment of error. We reject without written discussion trustees' fourth assignment of error, writing only to address their first and third assignments of error.

In those two assignments, trustees request de novo review. However, this is not an exceptional case, and we decline to exercise our discretion to review under that standard. See ORS 19.415(3)(b) (the court has the discretion to apply de novo review in equitable actions); see also ORAP 5.40(8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases"). Because the resolution of this case in trustees' favor depends on us reviewing this case de novo and being persuaded that the evidence supports their contentions on appeal, and because we have declined to apply that standard, we affirm the trial court's ruling.

Affirmed.


author: TOOKEY, J.

text:
    WILLAMETTE OAKS, LLC, Petitioner, v. CITY OF EUGENE and Alexander Loop, LLC, Respondents.
    A168657
    Court of Appeals of Oregon.
    Argued and submitted October 12, 2018. January 24, 2019
    Frederick A. Batson, Eugene, argued the cause for petitioner. Also on the brief were Joshua K. Smith and Gleaves Swearingen LLP.
    Michael C. Robinson, Portland, argued the cause for respondent Alexander Loop, LLC. Also on the brief were Andrew J. Lee and Schwabe, Williamson & Wyatt, P.C.
    Lauren A. Sommers waived appearance for respondent City of Eugene.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Petitioner Willamette Oaks, LLC (Willamette), seeks judicial review of an opinion and order of the Land Use Board of Appeals (LUBA), in which LUBA affirmed a decision by the City of Eugene that the final phase of the Goodpasture Island Planned Unit Development (PUD) complies with a PUD condition of approval. Specifically, the city determined, and LUBA concurred, that the proposed development of Phase 5 of the PUD satisfied Condition 3, which imposed a "trip cap," limiting vehicle trips generated by the PUD to a specified number of trips during the a.m. and p.m. peak hours, as determined by the Institute of Transportation Engineers Trip Generation Manual (ITE Manual). Willamette raises two assignments of error on review.

First, Willamette contends that LUBA erred in affirming the city's decision because its interpretation of Condition 3 is contrary to prior LUBA and Court of Appeals decisions, in violation of "law of the case." Respondent Alexander Loop, LLC (Goodpasture), responds that Willamette failed to preserve that argument, and, in any event, it fails on its merits. As explained below, we agree with Goodpasture that Willamette's first assignment of error is unpreserved, and, therefore, we do not reach the merits. See ORAP 5.45(1) (except for discretionary plain error review, "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court"). Second, Willamette contends that, if calculated according to the "correct" ITE Manual codes, LUBA erred in concluding that substantial evidence supports the city's determination that Phase 5 of the PUD satisfies Condition 3. Because that assignment of error necessarily depends on the correctness of its first assignment, which we do not address, we also reject Willamette's second assignment of error. Accordingly, we affirm.

The Goodpasture Island PUD is a multifamily/mixed-use development encompassing five phases, four of which have been built. The development has a long and complicated history, and it has been the subject of extensive litigation over nearly a decade. For context, we recite the historical facts relevant to the present dispute-which are uncontested-from LUBA's opinion and order:

"Condition 3 [ ] was originally imposed in 2010, as part of a decision approving the rezoning of the subject property, to facilitate approval of a proposed PUD for a large multifamily/mixed use development, in five phases. To establish that the rezoning was consistent with the Transportation Planning Rule (TPR), at OAR 660-012-0060, the applicant proposed a 'trip cap' limiting the number of vehicle trips the PUD could generate during peak hours. The trip cap was designed to keep PUD traffic generation at or below what the subject property could have generated under the previous zoning, in order to avoid mitigation and other obligations the TPR would otherwise require. The trip cap numbers were based on a 2009 traffic impact analysis (2009 TIA), which used three codes from the 7th edition of the ITE Manual to estimate the number of trips the PUD would generate on full build-out, assuming a particular mix of three types of uses categorized under the ITE Manual: code 220 (Apartments), code 252 (Senior Adult Housing), and code 814 (Specialty Commercial).
"In 2011, the applicant applied to the city for final PUD approval and submitted a second TIA to demonstrate that the proposed 5-phase development would comply with Condition 3. However, the 2009 [sic ] TIA used ITE Manual code 223 (Mid-Rise Apartments) instead of code 220 (Apartments) to estimate trips generated by the unrestricted apartments proposed in several phases. The 2011 hearings officer rejected this approach, concluding that one of the purposes of Condition 3 was to 'establish a baseline by which to compare traffic impacts of future changes of use.' Accordingly, the 2011 hearings officer amended the first sentence of Condition 3 to specify that the trip cap must be determined 'using code 220-Apartments for all unrestricted residential apartments on the development site.'
"The 2009 TIA and the 2010 tentative PUD approval assumed construction of 125 senior adult housing units in Phase 4. In the 2011 proceeding, the applicant instead proposed Phase 4 construction to include a mix of 22 senior adult housing units and 132 units (beds) of assisted living, [the latter of] which is represented by a different ITE Manual code, code 254 (Assisted Living) and which is a code category that generates more traffic than code 252 (Senior Adult Housing).[ ] Apparently because of this change in the type of restricted residential uses, the hearings officer also amended Condition 3 to require that prior to construction of the final phase, Phase 5, the applicant conduct a current traffic study that counts the actual number of trips generated by the constructed phases 1-4, to determine if additional analysis or mitigation may be required under the TPR prior to construction of Phase 5. With that amendment, the 2011 hearings officer granted final PUD approval. Subsequently, on appeal, LUBA rejected all challenges to the amended Condition 3. Willamette Oaks LLC v. City of Eugene , 64 Or. LUBA 24 (2011), aff'd , 248 Or.App. 212, 273 P.3d 219 (2012)."

(Footnotes and record cites omitted.)

Before turning to the proceedings that led, ultimately, to the present review, we pause to set out Condition 3, as amended by the 2011 hearings officer (amendments are underscored):

"Prior to executing the performance agreement, the applicant shall revise the final site plan to add the following note: 'The maximum development on the site shall be limited so that it would not produce more than 287 trips in the AM peak hour and 321 trips during the PM peak hour as determined by the Institute of Transportation Engineers Trip Generation Manual, using code 220-Apartments for all unrestricted residential apartments on the development site. The city may allow development intensity beyond this maximum number of peak hours vehicle trips only if the applicant submits to the city and [Oregon Department of Transportation] a traffic impact analysis that demonstrates that the proposed intensification of use would be consistent with the Transportation Planning Rule (TPR) at OAR 660-012-0060. The applicant shall seek and the city shall consider such approval using the city's Type II land use application procedure. Prior to construction of the final phase, the applicant shall conduct a current traffic study that counts the actual number of trips currently occurring to determine if the final phase would require a revised traffic impact analysis and additional improvements to comply with the Transportation Planning Rule. The city shall not issue building permits for the final phase until the applicant has received approval of the revised traffic impact analysis."

In 2017, after the first four phases of the PUD were built, Goodpasture applied for Phase 5 approval, proposing 186 unrestricted apartments. As contemplated by the modification of Condition 3, it submitted a then-current traffic study of trips generated during peak hours under the constructed Phases 1 to 4. That traffic count, added to the estimated peak hour traffic to be generated in Phase 5 using ITE code 220 (apartments) was less than the trip cap set out in the first sentence of Condition 3. The hearings officer concluded that that was sufficient to demonstrate that proposed Phase 5 of the PUD complied with Condition 3; it rejected Willamette's argument that Goodpasture must also demonstrate that the first sentence of Condition 3 was satisfied-that is, that maximum development on the site also did not exceed the trip cap as determined under the ITE manual . On appeal, LUBA disagreed and remanded the decision for the hearings officer to decide that question. Willamette Oaks LLC v. City of Eugene , --- Or. LUBA ----, ---- (LUBA No. 2017-058, October 5, 2017) (slip op. at 11) (holding that the third requirement of Condition 3 is intended to supplement, rather than replace, the first requirement; thus, "the final phase applicant must submit both (1) an analysis of whether the maximum development on the site (all five phases) does not exceed the trip cap specified in the first requirement [of Condition 3], as determined under the ITE manual, and (2) a current traffic study of traffic generated by the prior built phases").

On remand, Goodpasture submitted a letter from its traffic engineer asserting that up to 193 unrestricted apartment units-more than the 186 units that Goodpasture proposed-could be built in Phase 5 without exceeding the trip cap in Condition 3. The letter explained that the calculations were based on the ITE Manual codes consistent with those assumed in the 2009 TIA, which was "the basis for the original trip generation estimates and established trip cap." Thus, as LUBA explained in its order on review,

"the traffic engineer used the same three ITE Manual codes used in the 2009 TIA: 220 (Apartments), 252 (Senior Adult Housing), and 814 (Specialty Commercial), but updated the number of units to reflect those actually built during phases 1-4 and proposed in phase 5. Thus, instead of multiplying the senior housing rate by the 125 units of senior adult housing assumed in the 2009 TIA, the traffic engineer multiplied the rate by the number of senior adult housing units and assisted living units (beds) actually built in phase 4."

Willamette raised two objections, one of which is relevant here. Specifically, Willamette objected to the use of the ITE Manual code and rate applicable to Senior Adult Housing (ITE Manual code 252), rather than the code and rate applicable to the 132 Assisted Living units (ITE Manual code 254) that were actually constructed in Phase 4. According to Willamette, using that code, the trip cap would allow for only 167 additional apartment units, not the 186 proposed by Goodpasture; therefore, Phase 5 exceeded the limit imposed in Condition 3.

The hearings officer rejected Willamette's objection, reasoning that "the intent of the 2011 amendments to Condition 3 was to require a consistent 'baseline' to evaluate compliance with the trip cap, by using the same ITE Manual codes used in initially setting the trip cap." Thus, the hearings officer decided that Phase 5 satisfied the trip cap in Condition 3.

As discussed in more detail below, Willamette appealed the city's decision to LUBA, and LUBA affirmed. Willamette seeks review of LUBA's final opinion and order affirming the city, raising two interrelated assignments of error.

Willamette's first assignment of error states:

"LUBA erred in finding that Condition #3 was satisfied by allocating trips under the ITE for uses specified in Applicant's initial 2009 TIA rather than allocating trips under the ITE from the uses in Applicant's 2010 TIA that were actually permitted and built on Parcel 4 as expressly required by LUBA in its 2010 and 2011 decisions and by the Court of Appeals in its 2012 decision ."

(Emphasis added; boldface and footnotes omitted.) Willamette contends that those three decisions-LUBA's decisions in Willamette Oaks, LLC v. City of Eugene , 63 Or. LUBA 75 (2011) (Willamette I ), and Willamette Oaks, LLC v. City of Eugene , 64 Or. LUBA 24 (2011) (Willamette II ), and our decision affirming Willamette II in Willamette Oaks, LLC v. City of Eugene , 248 Or.App. 212, 273 P.3d 219 (2012) ( Willamette III )-required the hearings officer, in assessing whether Condition 3 was satisfied, to apply the ITE Manual codes associated with the uses for which Willamette ultimately obtained final PUD approval and that were actually permitted and built in Phase 4-that is, primarily assisted living (ITE Manual code 254) rather than Senior Adult Housing (ITE Manual code 252)-in calculating traffic generation for purposes of the trip cap.

According to Willamette, those cases "have previously held that trips be allocated, for purposes of ITE analysis, once building permits are obtained for each phase in accordance with the permitted uses." For example, Willamette points out that, in denying its earlier objection that the trip cap was invalid because it did not include an enforcement mechanism, LUBA stated, in part:

"[Goodpasture] first responds that to the extent any monitoring or enforcement of a condition is required, the trip cap is monitored and enforced when the city receives an application for a building permit under the final, approved PUD and site plan and then allocates from the trip cap the number of trips associated with a particular use at the time a building permit is issued for that use. According to [Goodpasture], after all of the trips within the trip cap have been allocated, no further development of the property can occur unless the trip cap is increased. The city will monitor trips by monitoring the building permits issued as development occurs. While the condition of approval does not provide quite that level of detail about how the trip cap condition will be enforced, evidence in the record supports the city's conclusion that the trip cap is enforceable."

Willamette I , 63 Or. LUBA at 94. See also Willamette II , 64 Or. LUBA at 45 (quoting portions of that passage from Willamette I ). Willamette also relies on our 2012 opinion affirming Willamette II , in which we stated, "Both in its original and modified form, the condition 'is monitored and enforced when the city receives an application for a building permit under the final, approved PUD and site plan and then allocates from the trip cap the number of trips associated with a particular use at the time a building permit is issued for that use.' " Willamette III , 248 Or.App. at 223, 273 P.3d 219 (quoting Willamette I , 63 Or. LUBA at 94).

Based on those statements, Willamette concludes, LUBA (and the city's) decision that Goodpasture satisfied Condition 3 "by assuming 150 units of [Senior Adult Housing] (ITE Code 252) and zero units of Assisted Living [ (ITE Code 254) ] * * * is clearly inapposite with how LUBA and the Court of Appeals previously interpreted Condition #3 and therefore violates the law of the case ." (Emphasis added.) See State v. Pratt , 316 Or. 561, 569, 853 P.2d 827, cert. den. , 510 U.S. 969, 114 S.Ct. 452, 126 L.Ed.2d 384 (1993) ("[I]t is a general principle of law * * * that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review." (Internal quotation marks omitted.) ); Gould v. Deschutes County , 272 Or.App. 666, 686, 362 P.3d 679 (2015) (interpretive issues decided by LUBA in earlier phase of a case are law of the case and therefore binding on county, the inferior body, in further proceedings in same litigation, and LUBA, the appellate body, in any subsequent appeal).

The problem with that argument is that Willamette has not established that it made that argument below. As noted, ORAP 5.45(1) provides, in part, that "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court." We apply the preservation requirement to administrative proceedings, including review of LUBA orders and opinions. Barnes v. City of Hillsboro , 239 Or.App. 73, 81, 243 P.3d 139 (2010) ; VanSpeybroeck v. Tillamook County Camden Inns, LLC , 221 Or.App. 677, 690, 191 P.3d 712 (2008).

Each assignment of error in the appellant's opening brief must therefore "demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court." ORAP 5.45(4)(a). Specifically, for each assignment of error, the brief must contain a subheading entitled "Preservation of Error" that (1) "specif[ies] the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court," ORAP 5.45(4)(a)(i), and (2) sets out pertinent quotations from the record where the issue was raised and resolved, together with page number references to the record, or the excerpt of record if the quoted material is set out in the excerpt of record, ORAP 5.45(4)(a)(ii).

Here, in its preservation of error section related to its first assignment of error, Willamette states-in full-"Petitioner has raised, briefed, and argued this issue at all levels in all previous proceedings. ER-97." That single citation to the record is insufficient to establish Willamette's preservation of the issue before LUBA (much less "at all levels in all previous proceedings"). It directs us to one page in Willamette's petition for review before LUBA. There, to be sure, Willamette raises the argument that the hearings officer used the wrong ITE use codes and rates for Phase 4 in calculating whether Phase 5 would cause the PUD to exceed the trip cap in Condition 3. Its assignment of error appearing on that page states, "The Hearings Official misapplied Condition 3 by relying on uses from Applicant's 2009 TIA that were never built rather than uses included in the final approved PUD and actually built." (Emphasis added;

boldface omitted.) Willamette also explains that the hearings officer "should have used the ITE use code and rates for Parcel 4 that Applicant included with its revised TIA associated with uses proposed and subsequently approved in its final PUD because those uses were actually built on Parcel 4 and therefore generate the relevant trips to the site." (First and third emphases added; second emphasis in original.)

But that is a qualitatively different argument than Willamette makes in its first assignment of error to us-that the hearings officer was legally precluded by the law of the case doctrine (based on the three opinions cited above) from assessing Phase 5's compliance with the trip cap using ITE Manual codes specified in the 2009 TIA, rather than according to the uses that were actually built in Phase 4. Nowhere at ER-97 does that argument appear.

Moreover, although we are not required to comb the record to determine if an error was properly raised and preserved, ORAP 5.45(4)(a) ; Holbrook v. Precision Helicopters, Inc ., 162 Or.App. 538, 544, 986 P.2d 646, rev. den. , 329 Or. 527, 994 P.2d 128 (1999), our review of Willamette's LUBA petition as a whole similarly does not reveal that Willamette articulated to LUBA the law of the case theory it now presents to us. Rather, Willamette contended before LUBA that the hearings officer erred in "refusing to acknowledge that factual circumstances had changed since 2009"-specifically, that, in 2010, Goodpasture had changed the land uses approved in the 2009 TIA, and, therefore, those uses do not reflect the development for which Goodpasture obtained final PUD approval for and actually built in Phase 4. Thus, according to Willamette, there was "simply no rational explanation" for determining compliance with Condition 3 based on the 2009 ITE use codes, as the hearings officer had done. It further argued that the hearings officer's decision would "effectively undo" the 2011 modification of Condition 3.

In the context of that argument, Willamette noted that, "in fact, [Goodpasture] and LUBA have already agreed with [Willamette's] position on how to apply Condition 3 under the ITE," referencing Goodpasture's argument and LUBA's discussion of the trip cap in Willamette I (quoted above). Of significance, however, Willamette did not contend that LUBA's statement in Willamette I constituted a legal ruling that had preclusive effect as to the issue to be decided by the hearings officer. See Hayes Oyster Co. v. Dulcich , 199 Or.App. 43, 53, 110 P.3d 615, rev. den. , 339 Or. 544, 125 P.3d 750 (2005) ("The [law of the case] doctrine does not apply to 'every statement about the law or the facts that the court happens to venture in the course of rendering its decisions.' Blanchard v. Kaiser Foundation Health Plan , 136 Or.App. 466, 470, 901 P.2d 943, rev. den. , 322 Or. 362, 907 P.2d 248 (1995). Rather [it] applies to the portions of a prior appellate opinion that were necessary 'to the disposition of the appeal.' Id. "). In other words, Willamette contended before LUBA that the hearings officer erred in her interpretation of Condition 3, but not for the reason that law of the case compelled a different answer.

In sum, we fail to see how LUBA would have been alerted that (as Willamette now contends) the law of the case-specifically LUBA's 2010 and 2011 decisions and this court's 2012 opinion in Willamette III (the latter two of which Willamette never mentions in its LUBA petition)-prevented the hearings officer from understanding Condition 3 to apply the way it did. As we have previously emphasized, the statutory framework for review of quasi-judicial local government land use decisions " 'suggests that issues be preserved at the local government level for board review, and at LUBA level for judicial review, in sufficient detail to allow a thorough examination of the issue by the decision-maker, so as to potentially obviate the need for further review or at least to make that review more efficient and timely.' " Willamette III , 248 Or.App. at 225, 273 P.3d 219 (quoting VanSpeybroeck , 221 Or.App. at 691 n. 5, 191 P.3d 712 ). That detail is entirely missing here. And, "[j]ust as a court, LUBA is not obligated to make or develop a party's arguments when the party does not endeavor to do so itself." Barnes , 239 Or.App. at 81, 243 P.3d 139. We find that principle to be particularly apt here, considering the complex, multi-layered litigation between these parties. We conclude that Willamette's first assignment of error is unpreserved, and we therefore decline to address it.

Given that conclusion, Willamette's second, interrelated, assignment of error requires little discussion. In that assignment, Willamette asserts that "LUBA erred in concluding that there was substantial evidence in the record to support a determination that [Goodpasture's] proposed development would satisfy Condition #3 and generate fewer trips than permitted by the trip cap set forth in Condition #3." (Boldface omitted.) Specifically, it argues:

"There is no dispute that if you interpret Condition #3 to require the use of ITE code 254 (Assisted Living) for the Assisted Living units actually built on Parcel 4, [Goodpasture's] proposed development on Parcel 5 causes the PUD to exceed the trip cap and, as a result, [Goodpasture] cannot satisfy Condition #3. [Goodpasture] did not present any evidence below to contradict [Willamette's] evidence that if the correct ITE use codes and rates are used for Parcel 4 that [Goodpasture] cannot construct the proposed 186 units on Parcel 5 without exceeding the trip caps and therefore cannot satisfy Condition #3."

(Emphases added.) Thus, as Willamette itself recognizes, its second assignment of error is necessarily dependent on the conclusion that it was error for the hearings officer to calculate compliance with the trip cap in Condition 3 in the manner that it did, the subject of Willamette's first assignment of error. We have rejected that assignment as unpreserved. Willamette makes no other argument that LUBA misunderstood or misapplied its substantial evidence standard of review of the city's decision. See ORS 197.850(9)(a) ; Citizens for Responsibility v. Lane County , 218 Or.App. 339, 346, 180 P.3d 35 (2008) ("We must affirm LUBA's decision if it properly understood and applied the substantial evidence test contained in ORS 197.835(9)(a)(C)."). Accordingly, we reject Willamette's second assignment of error as well.

Affirmed.

      Respondent Alexander Loop, LLC, which intervened below, is successor-in-interest to the applicant, Goodpasture Partners, LLC. We follow Alexander Loop, LLC's lead in referring to itself as Goodpasture. Respondent City of Eugene waived appearance on appeal.

      Condition 3 is set out in full below. 295 Or.App. at 760-61, 437 P.3d at 316-17.

      As LUBA explained,
      "[u]nder the ITE Manual, trip generation numbers are derived by multiplying a peak hour number by the unit associated with the relevant code. For example, for code 252 (Senior Adult Housing), the unit is the dwelling unit, and the number for the a.m. peak hour is .08 per dwelling unit. For code 254 (Assisted Living), the relevant unit is the number of beds, and the applicable a.m. peak hour number is .14. The higher number for assisted living units (beds) presumably reflects traffic associated with increased numbers of support staff."

      Willamette's first objection challenged the edition of the ITE Manual used by the hearings officer, which the hearings officer and LUBA both rejected. Willamette does not raise that issue on review.

      The court has discretion to review an error that is plain, ORAP 5.45(1) ; Willamette does not request that we exercise that discretion in this case.

      Willamette also objected to the hearings officer "supporting her [decision] with an erroneous argument that [Goodpasture] itself never even raised."

      Willamette asserts that a footnote in LUBA's opinion demonstrates that it had preserved its law of the case argument. We disagree. The identified footnote does not, under our well-established preservation principles, establish that LUBA understood Willamette to be contending that law of the case prevented the hearings official from using the ITE Manual codes from the 2009 TIA in calculating whether Phase 5 would comply with the trip cap in Condition 3.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeffrey Charles HAINLINE, Defendant-Appellant.
    A164699
    Court of Appeals of Oregon.
    Submitted December 7, 2018. January 30, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for five counts of first-degree sexual abuse. Defendant challenges his sentence, arguing that the trial court plainly erred in basing its sentencing decision, in part, on defendant's exercise of his right to a trial. The state concedes that the trial court plainly erred. We agree, accept the state's concession, and remand for resentencing; we otherwise affirm.

Defendant was indicted on 10 counts of first-degree sexual abuse of defendant's two daughters. Defendant waived a jury trial and his case was tried to the court. The court convicted defendant of five of those counts. During sentencing, in considering whether to order consecutive terms of incarceration, the trial court stated:

"[T]he fact that you did put your daughters through additional trauma by forcing them to take the witness stand, and, obviously, they were traumatized by it. And at no time did you seem to want to-to save them from having to be traumatized further, it does bear some weight on the Judgment that I'm going to render and the sentence I'm going to render.
"And I say that not to punish you for exercising your right to a jury trial but to, I guess, point out that it reflects a rather calloused and narcissistic view that this is about you and not about somebody you've caused harm to.
"So I've gone back and forth. Initially it appeared to me that one 75-month sentence for each of the children, and have them run consecutive would be significant and sufficient. So I just want to spend a moment reflecting on whether I make a third one consecutive or in part consecutive and concurrent."

The court then sentenced defendant to 75 months of incarceration on each of Counts 1 and 2 to run concurrently, 75 months on Count 5 to run consecutive to Count 1, 75 months on Count 7 to run consecutive to Count 5 for 25 months, and 75 months on Count 10 to run concurrently to all other counts, for a total of 175 months.

On appeal, defendant argues that the trial court plainly erred by imposing a sentence based, in part, on the improper consideration that defendant had exercised his right to trial. The state concedes that the trial court plainly erred when it stated that defendant's decision to go to trial and require his daughters to testify would "bear some weight" on its sentencing decision, because that statement "improperly created an inference that defendant's sentence, or part thereof, was based on defendant's decision to proceed to trial."

We agree with and accept the state's concession. "A court must impose a sentence based solely on the facts of the case and the defendant's personal history, and not as punishment for pleading not guilty and proceeding to trial." State v. Qualey , 138 Or. App. 74, 76, 906 P.2d 835 (1995). In Qualey , the trial court made statements that led to an inference that it was basing its sentencing decision, in part, on the consideration that the defendant's decision to go to trial had caused trauma to the victim, who had to testify. Id . Because we could not "say that the court sentenced defendant solely on the facts of his case and personal history," we remanded the case for resentencing. Id. at 77, 906 P.2d 835 (emphasis in original). The same analysis and outcome applies to this case, where the trial court made similar statements. Further, we conclude that it is appropriate to exercise our discretion to correct the error in this case for the same reasons as discussed in State v. Camacho-Alvarez , 225 Or. App. 215, 217, 200 P.3d 613 (2009).

Remanded for resentencing; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Dwight William EUBANKS, Defendant-Appellant.
    A165391 (Control) A165392
    Court of Appeals of Oregon.
    Submitted December 7, 2018. February 13, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

In this criminal case, defendant was sentenced to a 36-month prison term and ordered to pay $ 914 in attorney fees. During that same proceeding, defendant's probation was revoked, and he was sentenced to 180 days of jail, concurrently to the prison term. The court also imposed $ 200 in court-appointed attorney fees on the probation revocation sentence.

Defendant argues that the court plainly erred in imposing the $ 1,114 in attorney fees because the court failed to make the predicate finding that he "is or may be able to pay" and, even if the court had made that finding, the record is insufficient to support such a finding. See ORS 151.505(3) ("The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs."); ORS 161.665(4) ("The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.").

The state concedes that the trial court plainly erred in ordering defendant to pay attorney fees because the record lacks evidence of defendant's ability to pay and that the proper remedy is reversal of that portion of the judgment imposing the fees. We accept the state's concession. See State v. Coverstone , 260 Or. App. 714, 715-16, 320 P.3d 670 (2014) (where the record is silent as to a defendant's ability to pay, it was plain error to impose attorney fees);

State v. Ramirez-Hernandez , 264 Or. App. 346, 347-48, 332 P.3d 338 (2014) (finding that the trial court plainly erred in imposing attorney fees when the record lacked sufficient evidence of defendant's ability to pay).

Furthermore, we agree that it is appropriate to exercise our discretion to correct the error. See Coverstone , 260 Or. App. at 716-17, 320 P.3d 670 ("When a plain error is established, we still must determine if it is appropriate to exercise our discretion to correct the error, considering, among other things, 'the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way.' " (Quoting Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991) )). The error in this case is grave due to the substantial amount of attorney fees that were ordered, the length of defendant's prison term, and lack of any evidence regarding defendant's ability to pay the attorney fees while in custody or upon his release. See State v. Hunt , 271 Or. App. 347, 353, 350 P.3d 521 (2015) (imposition of $ 510 in attorney fees was plain error; the error was grave due to defendant's 14-month sentence and the absence of evidence in the record that defendant had "another source of income or that he has or will have the capacity to pay the fees").

Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.


author: LAGESEN, P. J.

text:
    CITY OF EUGENE, Plaintiff-Respondent, v. Hamid Michael HEJAZI, Defendant-Appellant.
    A167205
    Court of Appeals of Oregon.
    Submitted January 4, 2019. February 21, 2019
    Hamid Michael Hejazi filed the brief pro se.
    Ben Miller filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

After a confrontation in a park between defendant and others, defendant was cited for violating the City of Eugene's Park and Open Space Rules. Those rules, which were adopted by Administrative Order No. 58-17-07-F, make it unlawful to "participat[e] in a disturbance or riotous behavior that interferes with the reasonable use by the general public of the park, open space, or facility," Rule 1.010(4), or to "[e]ngag[e] in any activity or conduct within a park, open space area, or park facility that is prohibited by these rules, state statutes, the Eugene Code, 1971, or posted signs," Rule 1.010(15). After a trial in municipal court, defendant was found to have violated those rules. He then appealed that decision to the circuit court. See ORS 221.359(2) ("Except as provided [for municipal courts that have become courts of record], in a prosecution of any offense defined and made punishable by any city charter or ordinance, a plaintiff may appeal to the circuit court within whose jurisdiction the city has its legal situs and maintains its seat of city government in the manner provided by ORS 157.020(2) for taking appeals from justice courts.").

The circuit court, after a trial de novo , likewise found that defendant had violated the park rules and fined him $150. He now appeals to this court, asserting that we have jurisdiction pursuant to ORS 138.057(2). That statute provides that "[a]n appeal from a judgment involving a violation entered by a circuit court may be taken as provided in ORS chapter 19."

Notwithstanding the plain text of that provision, the City of Eugene disputes that we have jurisdiction to hear the appeal. It argues that the statute is inapplicable in light of our decision in City of Lowell v. Wilson , 197 Or. App. 291, 105 P.3d 856, rev. den. , 339 Or. 406, 122 P.3d 64 (2005). In that case, we recognized that " ORS 138.057 appears to confer an unqualified right to appeal to this court from convictions for violations in municipal court," but we held that, even so, "in the circumstances presented here-viz. , an appeal arising from a municipal court conviction for violation of a municipal code provision- ORS 138.057 does not apply" and that the "sole potential source of our jurisdiction is ORS 221.360 as construed in [ City of Salem v. Polanski , 202 Or. 504, 276 P.2d 407 (1954) ]." Wilson , 197 Or. App. at 309, 311, 105 P.3d 856 (emphasis in Wilson ).

The statute we held to be applicable in Wilson provides:

"In all cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained as indicated in ORS 221.359, such person shall have the right of appeal to the circuit court in the manner provided in ORS 221.359, regardless of any charter provision or ordinance prohibiting appeals from the municipal court because of the amount of the penalty or otherwise. An appeal may likewise be taken in such cases from the judgment or final order of the circuit court to the Court of Appeals in the same manner as other appeals are taken from the circuit court to the Court of Appeals in other criminal cases. Where the right of appeal in such cases depends upon there being involved an issue as to the constitutionality of the charter provision or ordinance, the decision of the appellate court shall be upon such constitutional issue only."

ORS 221.360 (emphasis added). Our analysis in Wilson , which turned on the Supreme Court's decision in Polanski , held that "the essential prerequisite-the sine qua non -of our jurisdiction under ORS 221.360 is that the appellant raise a cognizable facial or as-applied challenge to the constitutionality of an ordinance" the appellant was convicted of violating. Wilson , 197 Or. App. at 300-01, 105 P.3d 856. In other words, "[u]nder ORS 221.360, when a defendant has been convicted in municipal court, and then convicted in circuit court following a trial de novo , we have jurisdiction to review the circuit court judgment only if the defendant is challenging the constitutionality of the ordinance he was convicted of violating." City of Eugene v. Smyth , 239 Or. App. 175, 181, 243 P.3d 854 (2010), rev. den. , 350 Or. 230, 253 P.3d 1079 (2011).

In the city's view, defendant has failed to raise such a constitutional challenge, and we therefore lack jurisdiction. We disagree. Although the basis of defendant's appeal is not well developed, we understand his arguments to include a contention that the ordinance he was convicted of violating, Administrative Order No. 58-17-07-F, cannot be constitutionally applied to him because it mandates an unlawful process that limits his ability to defend himself from the charges in the citation-what defendant describes as "constitutional problems with the Park Rules ordinance providing for a secret though determinative appeal procedure." Accordingly, we reject the city's argument that we must dismiss the appeal for lack of jurisdiction; at the very least, this court has jurisdiction to consider defendant's contention that the ordinance, as drafted and enforced in this circumstance, violates his constitutional rights.

The city also identifies questions of reviewability as to particular issues raised by defendant, but we need not resolve them. Even assuming that the issues raised in defendant's briefing are reviewable, we would reject them on the merits. Written discussion of those issues, and our reasoning, would not benefit the bench, the bar, or the public. Suffice it to say that we have considered defendant's arguments, none of which merits reversal, and we therefore affirm the judgment of the circuit court.

Affirmed.

      In the circuit court, defendant similarly argued that
      "the appeal procedure adopted by the City of Eugene in their Park Rules leading to this matter violates the Oregon Constitution Art. 1, Section 10, for it is by design a private off the record informal though regulating hearing in which charging officers failed to prosecute the Defendant according to any lawful standard, where the Defendant [is] barred from making any motions, examine any witnesses, or have any neutral observer present."
      (Emphasis added.) On appeal, he contends that, under the park rules, he was "mandated to go through a secret though determinative hearing procedure" to appeal the charge, such that his "rights to due process in the Oregon and US Constitutions was effectively curtailed," and that the "charge" should have been dismissed by the circuit court based on that constitutional violation; in response to the city's motion to dismiss the appeal, defendant submitted that "[t]he review of the Municipal Court and Circuit Court relied upon the finding of the secret hearing-making lawful review impossible." Again, although the precise nature of that argument is unclear, we understand defendant to challenge the constitutionality of applying the ordinance in light of defects in the procedures in the adopted park rules themselves-an argument that is not well taken but that falls within the types of constitutional arguments that we have appellate jurisdiction to consider.

      Although we need not address the role that ORS 138.057 plays in this case, we note that our reluctance to give effect to the plain text of that statute in Wilson turned in large part on the doctrine of legislative acquiescence. Subsequently, the Supreme Court has counseled against overreliance on the doctrine in construing statutes. Farmers Ins. Co. v. Mowry , 350 Or. 686, 695-97, 261 P.3d 1 (2011).
      We also observe that there are at least two other statutes, ORS 3.134 and ORS 153.121, that, by their terms, address appellate authority related to circuit court judgments in cases originating in municipal court or involving offenses defined by municipal ordinance. Those statutes, enacted before Wilson , were not discussed in that decision and have not been raised by the parties in this case.