[DV_listserv] No-Contact Order

[Domestic Violence issues]

Hi, All:

I'm sending out this legal update b/c one of the findings deals w/ the imposition of a "no-contact" order when a prison sentence is imposed. The court of appeals determined that, in this case, the court DID NOT have the right to impose a "no-contact" order when the defendant received a prison sentence; only the DOC or parole board can do that.

The finding in Rubio follows the court's 2010 decision in Langmayer (cited in Rubio). Langmayer was a DV case (BM 11) where the defendant received prison time. The court imposed a no-contact provision as part of the sentence. In Langmayer, the court explicitly found that the no-contact condition exceeded the court's authority as only DOC or the parole board has the authority to impose that condition after judgment.

Certainly, if you have a case where the defendant is headed to prison and the victim has no other protection "order" besides a release agreement or in-custody no-contact order (i.e., no Restraining or Stalking Order), you would want to alert the victim to that fact and take steps to have DOC prohibit contact; for instance, the court may "recommend" conditions to DOC on the Judgment Order.

--Erin


State v. Rubio, __ Or App __, __ P3d __ (February 15, 2012) (Jackson) (AAG Janet
Klapstein). Defendants knew that the victim had $2,600 in cash on him, so they armed
themselves with a hammer and a loaded pistol, went to the victim's motel room, pushed their
way into the room, and attempted to rob him. The defendant with the pistol forgot to release the
safety, but the other managed to hit the victim with a hammer. The victim fought them off and
summoned help, and defendants left. The defendants then went back to the home of Norton,
who helped them to pass on the gun to someone else. Defendants were charged with first-degree
robbery, assault, and burglary. After their arrest, Norton turned the gun over to the police, who
determined that it was operable. At trial, the court limited defendants' cross-examination of
Norton when he refused to reveal the identity of the person with whom he had stashed the gun.
Defendants argued that if they knew the identity of that person, they may be able to prove the
gun actually was inoperable when they had it, which might result in the crime being reduced to
second-degree robbery. The trial court ruled that the questioning was too "collateral" and did not
require Norton to identify his friend. Defendants were found guilty of first-degree burglary,
first-degree robbery, and third-degree assault.
Held: Convictions affirmed, remanded with directions to enter a corrected judgment.
(Brewer, CJ). [1]The trial court properly exercised its discretion under OEC 403 to limit the
cross-examination of Norton on the ground that the issue had low probative value, was a
collateral matter, and was likely to confuse the jury. The identity of the person who held the gun
after the incident would not show its condition at the time of the crime, and defendants did not
pursue the inoperability theory as part of their defense. (Their defense at trial was that it a
misunderstanding over a drug deal.) [2] The trial court committed plain error when it imposing a
condition in the judgment that the defendants not contact the victim during their prison term.
Because defendants were sentenced to prison, only the Corrections Division and the parole board
have authority to impose such a condition during incarceration or post-prison supervision.
[3] But the court denied defendants' request for "a full resentencing": "Because the only error
was the inclusion of terms in the judgments that the trial court had no authority to impose, the
appropriate remedy is to remand with instructions to delete the erroneous terms from the
judgments."
http://courts.oregon.gov/sites/Publications/A142063.pdf

*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20120227/ad430829/attachment.html>