conviction exception in Oregon

2007In Bray , the Supreme Court considered whether the “persistent involvement” factor “comes within the prior conviction exception to the rule in Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000).” Bray, 342 Or at 714 .

2007In Bray , the Supreme Court considered whether the “persistent involvement” factor “comes within the prior conviction exception to the rule in Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000).” Bray, 342 Or at 714 .

2007The plurality reasoned that, “[w]hile the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to * * * Apprendi to say that [the prior conviction exception in] Almendarez-Torres [v. United States, 523 US 224 , 118 S Ct 1219 , 140 LEd 2d 350 (1988)] clearly authorizes a judge to resolve the dispute.” Id. at 25.

2007The plurality reasoned that, “[w]hile the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to * * * Apprendi to say that [the prior conviction exception in] Almendarez-Torres [v. United States, 523 US 224 , 118 S Ct 1219 , 140 LEd 2d 350 (1988)] clearly authorizes a judge to resolve the dispute.” Id. at 25.

2021The convictions on Counts 10 and 12 involved addi- tional and related conduct in the February 20, 2016, incident 11 In State v. Hess, 342 Or 647, 662 , 159 P3d 309 (2007), the Supreme Court held that, assuming arguendo that the prior conviction requirement in ORS 163.465(2)(b) (public indecency) was an “element” of the crime that the state must prove to a jury, a defendant’s judicial admission of a prior conviction established the fact of the prior conviction conclusively and relieved the state of its burden to prove that element of the crime.

2021The convictions on Counts 10 and 12 involved addi- tional and related conduct in the February 20, 2016, incident 11 In State v. Hess, 342 Or 647, 662 , 159 P3d 309 (2007), the Supreme Court held that, assuming arguendo that the prior conviction requirement in ORS 163.465(2)(b) (public indecency) was an “element” of the crime that the state must prove to a jury, a defendant’s judicial admission of a prior conviction established the fact of the prior conviction conclusively and relieved the state of its burden to prove that element of the crime.

1997In State v. Walton, 311 Or. 223, 230 , 809 P.2d 81 (1991), this court reiterated the rule for testing harmless error under the Oregon Constitution, found in State v. Isom, 306 Or. 587, 595-96 , 761 P.2d 524 (1988), as follows: "`Under Oregon law, a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a "substantial right" of the defendant.

1997In State v. Walton, 311 Or. 223, 230 , 809 P.2d 81 (1991), this court reiterated the rule for testing harmless error under the Oregon Constitution, found in State v. Isom, 306 Or. 587, 595-96 , 761 P.2d 524 (1988), as follows: "`Under Oregon law, a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a "substantial right" of the defendant.

1997In State v. Walton, 311 Or. 223, 230 , 809 P.2d 81 (1991), this court reiterated the rule for testing harmless error under the Oregon Constitution, found in State v. Isom, 306 Or. 587, 595-96 , 761 P.2d 524 (1988), as follows: "`Under Oregon law, a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a "substantial right" of the defendant.

1997In State v. Walton, 311 Or. 223, 230 , 809 P.2d 81 (1991), this court reiterated the rule for testing harmless error under the Oregon Constitution, found in State v. Isom, 306 Or. 587, 595-96 , 761 P.2d 524 (1988), as follows: "`Under Oregon law, a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a "substantial right" of the defendant.

1975Defendant, having been convicted in circuit court of a felony, namely, conspiracy with others to furnish approximately 20 pounds of hashish to one Charles Williams, appeals, contending (1) that under State v. Brown, 262 Or 442 , 497 P2d 1191 (1972), he was sub jected to double jeopardy, and (2) that the conviction was in violation of ORS 161.485 (3), which provides: “A person shall not be convicted on the basis of the same course of conduct of both the actual commission of an offense and an attempt to commit that offense or solicitation of that offense or conspiracy to commit that offense.” Fo

1975Defendant, having been convicted in circuit court of a felony, namely, conspiracy with others to furnish approximately 20 pounds of hashish to one Charles Williams, appeals, contending (1) that under State v. Brown, 262 Or 442 , 497 P2d 1191 (1972), he was sub jected to double jeopardy, and (2) that the conviction was in violation of ORS 161.485 (3), which provides: “A person shall not be convicted on the basis of the same course of conduct of both the actual commission of an offense and an attempt to commit that offense or solicitation of that offense or conspiracy to commit that offense.” Fo

1972In Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970) the court held that a conviction for violation of a municipal ordinance bars, under the double jeopardy guarantee, a subsequent felony conviction under state law for the same offense.

1972In Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970) the court held that a conviction for violation of a municipal ordinance bars, under the double jeopardy guarantee, a subsequent felony conviction under state law for the same offense.

2019Whether those elements “are the same as or nearly the same as the elements of” ORS 813.010(1), Carlton, 361 Or at 43 , is a legal question, not an additional factual inquiry.

2017When we review a challenge to the sufficiency of the evidence following a conviction of a violation, we examine the evidence “in the light most favorable to the state to determine whether any rational trier of fact could have found that the essential elements of the violation had been proved by a preponderance of the evidence.” 3 State v. Bainbridge, 230 Or App 500, 502 , 216 P3d 338 (2009) (internal quotation marks, brackets, and citation omitted).

2017When we review a challenge to the sufficiency of the evidence following a conviction of a violation, we examine the evidence “in the light most favorable to the state to determine whether any rational trier of fact could have found that the essential elements of the violation had been proved by a preponderance of the evidence.” 3 State v. Bainbridge, 230 Or App 500, 502 , 216 P3d 338 (2009) (internal quotation marks, brackets, and citation omitted).

2013Ct., 280 Or 95, 100-02 , 570 P2d 52 (1977), that the legislature may decriminalize minor offenses by enacting a system to prosecute violations, but, in doing so, may not deny an accused the right to a jury trial under Article I, section 11, if the proceeding retains attributes of a “criminal prosecution.” Id. at 102-04 .

2013Ct., 280 Or 95, 100-02 , 570 P2d 52 (1977), that the legislature may decriminalize minor offenses by enacting a system to prosecute violations, but, in doing so, may not deny an accused the right to a jury trial under Article I, section 11, if the proceeding retains attributes of a “criminal prosecution.” Id. at 102-04 .

2012See State v. Reynolds, 250 Or App 516, 520 , 280 P3d 1046 (2012) (so holding); State v. Inloes, 239 Or App 49 , 243 P3d 862 (2010) (reviewing insufficiency of the evidence to support a conviction as error apparent on the record).

2012See State v. Reynolds, 250 Or App 516, 520 , 280 P3d 1046 (2012) (so holding); State v. Inloes, 239 Or App 49 , 243 P3d 862 (2010) (reviewing insufficiency of the evidence to support a conviction as error apparent on the record).

2007In short, we agree with the Court of Appeals that ‘[p]ersistent involvement in similar offenses’ presents a factual issue that, under Apprendi and Blakely [v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004)], a defendant may insist that a jury find beyond a reasonable doubt.” Id. at 724 (footnote omitted).

2007In short, we agree with the Court of Appeals that ‘[p]ersistent involvement in similar offenses’ presents a factual issue that, under Apprendi and Blakely [v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004)], a defendant may insist that a jury find beyond a reasonable doubt.” Id. at 724 (footnote omitted).

2007Although Justice Thomas observed in Shepard that a majority of Court had recognized that the ease that gave rise to the exception “was wrongly decided,” id. at 27 (opinion concurring in part and concurring in the judgment), more recently a majority of the Court relied on the exception, James v. United States,_US_, 127 S Ct 1586 , 1600 n 8, 167 L Ed 2d 532 (2007). 15 Defendant appears to argue that determining whether a person’s prior offenses are “similar” to the conviction for which he or she is being sentenced also presents a factual issue that falls outside the prior conviction exception.

2007Although Justice Thomas observed in Shepard that a majority of Court had recognized that the ease that gave rise to the exception “was wrongly decided,” id. at 27 (opinion concurring in part and concurring in the judgment), more recently a majority of the Court relied on the exception, James v. United States,_US_, 127 S Ct 1586 , 1600 n 8, 167 L Ed 2d 532 (2007). 15 Defendant appears to argue that determining whether a person’s prior offenses are “similar” to the conviction for which he or she is being sentenced also presents a factual issue that falls outside the prior conviction exception.

2006Perez, 196 Or App at 369 .

2006Id. at 371 .

2005In Shepard v. United States, 544 US 13 , 125 S Ct 1254 , 161 L Ed 2d 205 (2005), Justice Thomas wrote: “Amendarez-Torres, like Taylor [v. United States, 495 US 575 , 110 S Ct 2143 , 109 L Ed 2d 607 (1990)], has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.

2005In Shepard v. United States, 544 US 13 , 125 S Ct 1254 , 161 L Ed 2d 205 (2005), Justice Thomas wrote: “Amendarez-Torres, like Taylor [v. United States, 495 US 575 , 110 S Ct 2143 , 109 L Ed 2d 607 (1990)], has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.

1997As this court stated in State v. Busby, 315 Or. 292, 299 , 844 P.2d 897 (1993): "Even if error occurs during trial, this court will not reverse a conviction if the error is harmless.

1997As this court stated in State v. Busby, 315 Or. 292, 299 , 844 P.2d 897 (1993): "Even if error occurs during trial, this court will not reverse a conviction if the error is harmless.

1995Without any examination of the language of the statute, we concluded that *653 “[i]t would be unreasonable to conclude that the legislature intended to require the state to search and prove the records of each county in Oregon to determine whether a defendant has a license to carry a concealed weapon.” 87 Or App at 187 .

1993See, e.g., Lockhart v. Nelson, 488 U.S. 33 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988) (the general prohibition against successive prosecutions found in the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States does not prevent the government from retrying a defendant whose first conviction is set aside, on the defendant's appeal, due to trial error); *80 State v. Verdine, 290 Or. 553, 560-61 , 624 P.2d 580 (1981) (for the same reasons that the Fifth Amendment does not bar a second trial, neither does Article I, section 12, of the Oregon Constitution).

1993See, e.g., Lockhart v. Nelson, 488 U.S. 33 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988) (the general prohibition against successive prosecutions found in the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States does not prevent the government from retrying a defendant whose first conviction is set aside, on the defendant's appeal, due to trial error); *80 State v. Verdine, 290 Or. 553, 560-61 , 624 P.2d 580 (1981) (for the same reasons that the Fifth Amendment does not bar a second trial, neither does Article I, section 12, of the Oregon Constitution).

1993InParchen, the court dismissed the appeal because it did not have jurisdiction to hear an appeal from a conviction for violation of a city ordinance. 113 Or at 210 .

1993In Parchen , the court dismissed the appeal because it did not have jurisdiction to hear an appeal from a conviction for violation of a city ordinance. 113 Or. at 210 , 231 P. 980 .

1987In United States v. Valenzuela-Bernal, 458 US 858 , 102 S Ct 3440 , 73 L Ed 2d 1193 (1982), the Court referred to its earlier opinion in Washington v. Texas, 388 US 14 , 87 S Ct 1920 , 18 L Ed 2d 1019 (1967), in affirming a conviction for violation of the immigration laws.

1987In United States v. Valenzuela-Bernal, 458 US 858 , 102 S Ct 3440 , 73 L Ed 2d 1193 (1982), the Court referred to its earlier opinion in Washington v. Texas, 388 US 14 , 87 S Ct 1920 , 18 L Ed 2d 1019 (1967), in affirming a conviction for violation of the immigration laws.

1987The issue was decided in Hunter v. State of Oregon, 84 Or App 698 , 735 P2d 1225 (1987), where we said that the post-conviction relief statutes apply when, as here, the conviction is for violation of a municipal ordinance mandated by a state statute to prohibit the same conduct and provide for the same penalty as the state DUII statute.

1987The issue was decided in Hunter v. State of Oregon, 84 Or App 698 , 735 P2d 1225 (1987), where we said that the post-conviction relief statutes apply when, as here, the conviction is for violation of a municipal ordinance mandated by a state statute to prohibit the same conduct and provide for the same penalty as the state DUII statute.

1987In United States v. Valenzuela-Bernal, 458 US 858 , 102 S Ct 3440 , 73 L Ed 2d 1193 (1982), the Court referred to its earlier opinion in Washington v. Texas, 388 US 14 , 87 S Ct 1920 , 18 L Ed 2d 1019 (1967), in affirming a conviction for violation of the immigration laws.

1987In United States v. Valenzuela-Bernal, 458 US 858 , 102 S Ct 3440 , 73 L Ed 2d 1193 (1982), the Court referred to its earlier opinion in Washington v. Texas, 388 US 14 , 87 S Ct 1920 , 18 L Ed 2d 1019 (1967), in affirming a conviction for violation of the immigration laws.