State v. Carter

451 P.3d 1046, 300 Or. App. 207

• Court: Court of Appeals of Oregon
• Decided: October 16, 2019
• Docket: A159493
• Status: Published

Opinion

On respondent’s petition for reconsideration filed December 24, 2018; reconsideration allowed, former disposition (295 Or App 145, 433 P3d 741) withdrawn, reversed and remanded for entry of judgment allowing the demurrer October 16, 2019

STATE OF OREGON, Plaintiff-Respondent, v. HAROLD WALTER CARTER, Defendant-Appellant. Multnomah County Circuit Court 14CR29528; A159493 451 P3d 1046

The state petitions for reconsideration of the Court of Appeals’ decision in State v. Carter, 295 Or App 145, 433 P3d 741 (2019), wherein it reversed defen- dant’s convictions on two counts due to improper joinder under State v. Poston, 277 Or App 137, 370 P3d 904 (2016), adh’d to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017). The state argues only that the Court of Appeals should modify its original disposition to remand for entry of judgment allowing demurrer. Held: In light of State v. Keith, 299 Or App 355, 450 P3d 1034 (2019), the Court of Appeals allowed for reconsideration and modified the disposition to remand for entry of judgment allowing the demurrer. Reconsideration allowed; former disposition withdrawn; reversed and remanded for entry of judgment allowing the demurrer.

Edward J. Jones, Judge. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, for respondent’s petition. Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore. PER CURIAM Reconsideration allowed; former disposition withdrawn; reversed and remanded for entry of judgment allowing the demurrer. 208 State v. Carter

PER CURIAM

The state petitions for reconsideration of our deci- sion in State v. Carter, 295 Or App 145, 433 P3d 741 (2018), wherein we reversed defendant’s convictions on two counts due to improper joinder under State v. Poston, 277 Or App 137, 370 P3d 904 (2016), adh’d to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017). In its petition, the state does not challenge our holding that the indictment was improperly joined or that defendant was prejudiced by the improper joinder. However, the state argues that we should “remand for further proceedings on the indictment, because more than one possible remedy for the pleading error is avail- able to the court.” After the state filed its petition, we issued our opinion in State v. Keith, 299 Or App 355, 450 P3d 1034 (2019), in which we discussed the proper disposition when a defendant has been harmed by improper joinder. Given Keith, we allow the petition for reconsideration and affirm our original disposition reversing both convictions, but mod- ify our disposition to remand for entry of judgment allowing the demurrer.

In Keith, we acknowledged that “our dispositional tagline” in cases dealing with improper joinder “has varied.” 299 Or App at 360. Indeed, in some cases, we reversed with- out a remand, and in others, we reversed and remanded for entry of judgment allowing demurrer. Ultimately, in Keith, we allowed for reconsideration, and, in part, modified the disposition to remand for entry of judgment allowing the demurrer. Id. We explained: “ORS 135.660 provides, ‘[u]pon considering the demur- rer, the court shall give judgment, either allowing or dis- allowing it, and an entry to that effect shall be made in the register.’ Additionally, ORS 135.670(1) provides that ‘[i]f the demurrer is allowed, the judgment is final upon the accusatory instrument demurred to.’ As [State v. Warren, 364 Or 105, 129-30, 430 P3d 1036 (2018)] indicated, ‘when a defendant establishes a proper ground for a demurrer to an indictment, the defendant is entitled to entry of a judg- ment on the indictment.’ ”

Id. Cite as 300 Or App 207 (2019) 209

The defendant in Keith was “entitled to a judgment on the indictment, and the current post-trial judgment [did] not suffice.” Id. The same is true in this case. Reconsideration allowed; former disposition with- drawn; reversed and remanded for entry of judgment allow- ing the demurrer.