State v. Kindler, 370 P.3d 909

Two Lane County cases were consolidated for trial: the 731 case (charges from a March 27, 2013 home search) and the 403 case (indictment for meth possession from a February 3, 2013 traffic stop).
The 731 case was filed May 21, 2013 and set for trial December 11, 2013. The 403 indictment was filed December 5, 2013; defendant was arraigned and counsel appointed minutes before the December 11 proceedings.
Defense counsel moved to postpone trial(s) because he had inadequate time to prepare for the newly filed 403 case; the court denied continuance but offered to hold an immediate omnibus suppression hearing in the 403 case.
Over vigorous defense objection the court held an on-the-spot suppression (omnibus) hearing, ruled the 403 evidence admissible, consolidated the cases, and proceeded to a jury trial a month later; the jury convicted on all counts.
At sentencing the court took judicial notice in the jury’s presence that defendant had “willfully failed to appear” for a mandatory proceeding; the jury found that enhancement and the court imposed upward departure sentences in both matters.
On appeal the court reversed the 403 conviction for abuse of discretion in denying continuance and remanded; it affirmed convictions in the 731 case but remanded for resentencing because judicial notice of a culpable mental state (willfulness) was improper and prejudicial.

Issue	State's Argument	Defendant's Argument	Held
Whether trial court abused discretion by denying continuance and forcing same-day omnibus suppression hearing and consolidation (403 case)	There was no prejudice; counsel had some discovery and trials can be managed; omnibus hearing was a reasonable use of time	Denial deprived counsel of reasonable time to research and prepare suppression issues and denied effective assistance of counsel	Reversed: denial exceeded permissible discretion; prejudice deemed established; conviction reversed and remanded
Whether court could take judicial notice that defendant "willfully failed to appear" (731 case sentencing enhancement)	Any error was harmless because testimony showed defendant fled the courthouse and jury was instructed on burden of proof	Judicial notice of a culpable mental state is improper; taking notice in jury’s presence and prosecutor’s reliance likely influenced jury	Remanded for resentencing: court erred; error not harmless given prosecutor’s comments and lack of OEC 201(g) instruction

State v. Ferraro, 264 Or. App. 271 (2014) (denial of continuance reversible where counsel prevented from adequate investigation and preparation)
State v. Hickey, 79 Or. App. 200 (1986) (reversal where denial of continuance prevented counsel from providing adequate preparation)
State v. Martinez, 224 Or. App. 588 (2008) (standard of review for continuance/abuse of discretion)
State ex rel. Juv. Dept. v. Garcia, 180 Or. App. 279 (2002) (counsel must be given reasonable time to prepare for hearing that may deprive liberty)