Today the Oregon Court of Appeals issued another opinion trying to grapple with the highly technical and confusing calculations that go into post-prison supervision time. The opinion in Norris v. Board of Parole can be found here.

The real rub in this case is the disparity that can result when multiple convictions are run concurrent, and ultimately result in several years more post-prison time than seemingly permitted under the law. The opinion summarizes it best:

“We acknowledge that the result may seem–and, perhaps, may be–incongruous. As noted, the trial court imposed four concurrent 10-year sentences and, by virtue of the board’s order, by the time petitioner completes his PPS, he will have been incarcerated and then subject to PPS for a total of more than 13 years. We also fully appreciate another anomaly–which petitioner does not posit–viz., that petitioner is actually in a worse position by virtue of having committed the least serious of his offenses (which yielded the longer terms of PPS) than he would have been if he had, instead, committed four acts of first-degree sexual abuse (and received concurrent sentences on each of the consequent convictions). In the latter case, petitioner’s combined incarceration and PPS would have ended within 10 years, rather than the more than 13 years that he is subject to here.”

This story over at CNN illustrates a point I make to all clients on appeal or working through the post-conviction system. Most attorneys and clients at trial recognize the need for silence. But, just because a trial is over doesn’t mean it’s suddenly okay to start talking about one’s case. In the story, the defendant’s comments were both ill-advised, and obviously indicative of criminal intent in other areas. They are reprehensible. But one doesn’t have to make such serious comments from prison to face trouble. Sometimes a simple statement can come back to haunt a defendant. Remember, a significant number of appeals result in new trials. Statements made while that appeal is processing, which can take years, could be used against a defendant at some future date in a new trial. The moral of the story: when litigation is ongoing, silence is the rule.

In the wake of the 500+ million state budget shortfall, agencies today released their proposed budget reduction plans.  Now, these are all taken with an enormous grain of salt.  First, we don’t know what the Legislature might do.  Second, pressure on public safety budgets usually results in something less dire actually being implemented.  In any case, of note we see…

1. The DOJ proposes cutting staff from their “Defense of Criminal Convictions” unit, that’s the group that handles PCR and habeas cases.  They acknowledge that this may result in DOJ losing more cases in this area.

2. The DOC proposes eliminating three institutions: Powder River, Mill Creek and Santiam.  The result would be release of approximately 1000 non-violent offenders.

3. The Board of Parole proposes reducing the amount they pay in Attorney General fees, basically meaning the money they spend to defend parole board actions against appeal and suit.

I wonder, however, if reducing the money spent on defending legal actions will result in more legal actions being filed, under the ‘while the cat’s away the mice will play’ theory.  If so, then this ‘savings’ is just a transfer of expenses from the executive to the judicial branch.  Anyway, should make for an interesting legislative session.

Merger is a highly technical, and often misunderstood area of Oregon law. In essence, merger means many convictions can be ‘merged’ into a single recorded conviction. When done correctly, a merger argument can make all the difference to a defendant, cutting literally years off a sentence. But, all too often, merger arguments are not made, or when made, are argued incorrectly.

On May 19, 2010, the Oregon Court of Appeals issued an opinion in Ross v. Hill which held that in is ineffective counsel in Oregon to fail to make a merger argument when the multiple charges are simply alternate theories of the commission of a single crime. This is great news for PCR clients, and helps set a higher standard of representation. Going forward, PCR cases will have to attempt to push this opinion further, and argue for ineffective counsel any time a merger argument should have been advanced, but was not.

The opinion can be found here:
http://www.publications.ojd.state.or.us/A135040.htm