415 P.3d 1139
Or. Ct. App.2018Background
- Defendant was indicted on five counts: delivery of marijuana to a minor (Counts 1 and 5 alleging Jan 1–June 4, 2014), possession of methamphetamine (Count 2, June 4, 2014), possession of a firearm as a felon (Count 3, June 4, 2014), and possession of a switchblade as a felon (Count 4, June 4, 2014).
- Defendant filed a written demurrer arguing the indictment failed to satisfy ORS 132.560’s joinder rules (offenses of same/ similar character, same act/transaction, or connected acts/common scheme) because the counts addressed different offense types and used different date ranges.
- The trial court denied the demurrer, finding the charges were contemporaneous and involved the same people/location, and defendant entered a conditional no-contest plea reserving the right to appeal the pretrial ruling.
- After briefing, this court’s precedent in State v. Poston (interpreting ORS 132.560 to require the charging instrument to show on its face the basis for joinder) issued; the state conceded Poston required reversal here.
- The appellate court held the indictment did not allege the statutory basis for joinder (neither by citing ORS 132.560 nor by alleging facts establishing one of its prongs), reversed the denial of the demurrer, and remanded so defendant may choose whether to withdraw the plea.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment sufficiently alleged a statutory basis for joinder under ORS 132.560 so that a demurrer should be denied | The State argued no specific allegation of joinder language or facts was required and that the counts were properly joined as contemporaneous and related | Defendant argued the indictment failed to allege any ORS 132.560 basis for joinder (same/similar character, same act/transaction, or connected acts/common scheme) and thus failed on its face | Reversed: Under Poston the charging instrument must show on its face a permissible basis for joinder; the indictment here did not and the demurrer should have been sustained; defendant may withdraw plea on remand |
Key Cases Cited
- State v. Marks, 286 Or.App. 775 (interpreting standards of appellate review for demurrer rulings)
- State v. Poston, 277 Or.App. 137 (charging instrument must allege basis for joinder under ORS 132.560)
- State v. Dinsmore, 182 Or.App. 505 (defendant who prevails on appeal after a conditional plea may withdraw the plea; harmless-error analysis inappropriate)