State v. Shaw

746

Submitted April 29, 2020, vacated and remanded February 24, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

CLIFFORD WILLIAM SHAW,

Defendant-Appellant.

Lane County Circuit Court

18CR43193; A168553

507 P3d 280

Defendant appeals from a judgment of conviction for felon in possession of

a firearm (FIP). He assigns error to the trial court’s denial of his motion to dis-

miss the FIP charge on the ground of double jeopardy, contending that the state’s

subsequent prosecution of FIP should be barred because the prosecutor knew

or reasonably should have known of the facts relevant to the FIP charge at the

time of the original prosecution for the possession of controlled substances case.

Held: The trial court erred in identifying the relevant point in time for assess-

ing prosecutorial knowledge. The operative time for the purpose of analysis was

not at the time of the original charging decision, but at the time of trial or plea.

Here, it was clear from the record that one day before defendant’s guilty plea,

police officers, in conjunction with the prosecutor’s office, applied for and were

granted a search warrant, which was then executed, revealing the two firearms.

However, the record did not tell the court who from within the prosecutor’s office

was present at the time of the guilty plea or who knew that the defendant was

going to enter a plea. In light of the holding in State v. Matischeck, 20 Or App

332, 336, 531 P2d 737, modified on recons, 21 Or App 300, 535 P2d 102 (1975),

the court remanded the matter to the circuit court for an evidentiary hearing on

that question.

Vacated and remanded.

Charles M. Zennaché, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kali Montague, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Christopher Page, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and

James, Judge.

JAMES, J.

Vacated and remanded.

Cite as 317 Or App 746 (2022) 747

JAMES, J.

On June 10, 2018, a police officer pulled over defen-

dant while he was driving, then searched his car, finding

methamphetamine in the center console and a backpack in

the back seat. Inside the backpack, the officer found defen-

dant’s mail, clothing, ammunition, and a locked box. The

officer lifted the corner of the box and saw what appeared to

be the handle of a handgun. The next day the state charged

defendant with unlawful possession of methamphetamine.

Roughly two weeks later, the state applied for, and

was granted, a warrant to search the locked box and, on

that same day, officers executed the warrant, discover-

ing two firearms. The officers lodged defendant in jail on

charges of felon in possession of a firearm (FIP), however a

formal accusatory instrument had not been filed. The next

day, on June 28, defendant pleaded guilty to the original

charge of unlawful possession of methamphetamine and

was sentenced. Roughly three hours after sentencing, the

state charged defendant by way of information with FIP.

Defendant moved to dismiss the new charge on

double jeopardy grounds pursuant to Article I, section 12,

of the Oregon Constitution and the Fifth Amendment to

the United States Constitution, and ORS 131.515.1 The

trial court denied the motion and this appeal followed. We

remand for further proceedings.

On appeal, defendant abandons his statutory argu-

ment under ORS 131.515 and challenges the trial court’s

denial of his motion to dismiss on state and federal double

jeopardy grounds. Or Const, Art I, § 12; US Const, Amend V.

We review the trial court’s denial of defendant’s motion

to dismiss on double jeopardy grounds for errors of law,

deferring to its factual findings that are supported by the

record. State v. Worth, 274 Or App 1, 8, 360 P3d 536 (2015),

rev den, 359 Or 667 (2016). In this case, we begin with the

state constitution in accordance with our normal practice,

and, because it is determinative, we do not reach the federal

1

Article I, section 12, provides, in part, that “No person shall be put in

jeopardy twice for the same offence.” The Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution provides, in part, “[N]or shall any

person be subject for the same offence to be twice put in jeopardy of life or limb[.]”

748 State v. Shaw

constitution. State v. Gillespie, 299 Or App 813, 817, 451 P3d

637 (2019).

We first address the state’s argument that this issue

is unpreserved. We disagree. According to the state, defen-

dant’s argument on appeal is materially different than the

argument raised at trial. Having reviewed the record, we

conclude that, while defendant’s appellate arguments have

been refined, they remain fundamentally the same as made

at trial.

In State v. Hitz, the Oregon Supreme Court stated:

“We have previously drawn attention to the distinctions

between raising an issue at trial, identifying a source for

a claimed position, and making a particular argument.

* * * The first ordinarily is essential, the second less so, the

third least. Thus, when a potential constitutional violation

is involved, the parties’ omission of a dispositive source or

argument of ordinary law cannot compel a court to a need-

less constitutional decision.”

307 Or 183, 188, 766 P2d 373 (1988) (emphases in orig-

inal; internal citation omitted). Here, defendant filed a

pretrial motion to dismiss the indictment of FIP, arguing

that the state had violated his rights under ORS 131.515

and Article I, section 12. As part of the reasoning, defen-

dant explained that his constitutional right was violated

because “[b]oth offenses were known to the prosecutor at

the time of the first prosecution for [Unlawful Possession

of a Controlled Substance-Methamphetamine].” Defendant

raised and preserved the broader legal issue—whether

the trial court erred in denying defendant’s motion to dis-

miss on the ground that the prosecutor did not have suffi-

cient knowledge of both offenses at the time of the original

prosecution—and identified the constitutional ground of

the claimed position. “Under the rationale in Hitz, a specific

alternate argument regarding that issue can be raised for

the first time in this court.” Stull v. Hoke, 326 Or 72, 77,

948 P2d 722 (1997). Accordingly, we conclude the issue is

preserved.

Turning to the merits, the double jeopardy provision

of Article I, section 12, is designed to further the objective

of protecting criminal defendants from the “harassment,

Cite as 317 Or App 746 (2022) 749

embarrassment and risk of successive prosecutions for the

same offense.” State v. Kennedy, 295 Or 260, 272-73, 666 P2d

1316 (1983); see also State v. Boyd, 271 Or 558, 562, 533 P2d

795 (1975) (stating that the purpose of the double jeopardy

doctrine is to protect the accused from undue harassment).

In State v. Brown, the Supreme Court summarized the

requirements of a constitutional double jeopardy challenge,

which provides that:

“[A] second prosecution is for the ‘same offense’ and is

prohibited if (1) the charges arise out of the same act or

transaction, and (2) the charges could have been tried in

the same court, and (3) the prosecutor knew or reason-

ably should have known of the facts relevant to the second

charge at the time of the original prosecution.”

262 Or 442, 458, 497 P2d 1191 (1972). On appeal, the state

neither contests that the charges could have been tried in

the same court, nor that the two charges arise out of the

same act or transaction. The only issue on appeal is whether

the prosecutor knew or reasonably should have known of the

facts relevant to the FIP charge at the time of the original

prosecution for the possession of controlled substance case.

The trial court’s written order explained that

“[i]n this case, there was insufficient evidence available

at the time [of the first accusatory instrument] to prose-

cute the defendant for Felon in Possession of a Firearm.

Although the officer who conducted the search incident to

arrest included in his search warrant affidavit that he has

years of experience and training in drug related offenses

and included in that experience is the knowledge that peo-

ple who often distribute drugs often carry firearms for pro-

tection. The officer stated he could ‘see what appeared to

be the handle of a handgun but I could not identify the

make, model, or caliber.’ While the officer may have rec-

ognized what he believed to be a handgun, even from the

lifted corner of a case, it was also possible to that the item

was not an operable firearm. Therefore, all of these facts

taken together by a prosecutor were insufficient evidence

on which to indict the defendant on the charge of felon in

possession of a firearm.”

The trial court erroneously identified the rele-

vant point of time for the analysis. The operative time for

750 State v. Shaw

assessing prosecutorial knowledge is not at the point of time

of the original charging decision, but at the point of trial or

plea. In State v. Leverich, we held that for purposes of the

Brown analysis, the proper time to test prosecutorial knowl-

edge was when the first charge goes to trial, not when the

first charge is initiated. 14 Or App 222, 230, 511 P2d 1265

(1973), aff’d, 269 Or 45, 522 P2d 1390 (1974); see also State

v. Allen, 16 Or App 456, 460, 518 P2d 1332, rev den (1974)

(deciding prosecutorial knowledge at the time defendant

pleaded guilty to the driving with a suspended operator’s

license charge). Subsequently, in State v. Matischeck, citing

Leverich, we held that “the proper time to test prosecutorial

knowledge was the time when the first charge goes to trial

or a guilty plea is entered.” 20 Or App 332, 336, 531 P2d

737, modified on recons, 21 Or App 300, 535 P2d 102 (1975)

(emphasis added). That conclusion is consistent with our

interpretation of the double jeopardy doctrine’s statutory

counterpart under ORS 131.515(2). See State v. Lowery, 95

Or App 583, 586-87, 770 P2d 923 (1989) (“For the purposes

of ORS 131.515(2), reasonable knowledge exists if the prose-

cutor knew or should have known of both offenses when the

defendant pleaded guilty to possession of a firearm.”).

Here, it is clear from the record that one day before

defendant’s guilty plea, police officers, in conjunction with

the prosecutor’s office, applied for and were granted a search

warrant, which was then executed, revealing the two fire-

arms. We explained in Matischeck that:

“[P]rosecutorial knowledge which would bar a second pros-

ecution after a plea of guilty on the first charge has to be

knowledge which the prosecutor had or should have had at

a time when he was in a position to call the attention of the

court to the problem and move for joinder prior to the offer

of a guilty plea on the first charge by the defendant and the

acceptance of it by the court.”

20 Or App at 337 (emphasis added).

Accordingly, at the time of the plea, the prosecutor’s

office knew or should have known of the very real possibility

that defendant possessed firearms that would be discovered

in the search and that such evidence, if found, would have

been in police possession at that point. However, the record

Cite as 317 Or App 746 (2022) 751

does not tell us who from within the prosecutor’s office was

present at the time of the guilty plea or who knew that

the defendant was going to enter a plea.2 We explained in

Matischeck that:

“Clearly the court in Brown did not intend that if a defen-

dant could get to the courthouse faster than the prosecu-

tion he could thereby automatically eliminate one charge.

It follows that prosecutorial knowledge which would bar a

second prosecution after a plea of guilty on the first charge

has to be knowledge which the prosecutor had or should

have had at a time when he was in a position to call the

attention of the court to the problem and move for joinder

prior to the offer of a guilty plea on the first charge by the

defendant and the acceptance of it by the court.”

20 Or App at 337. We therefore remand this matter to the

circuit court for an evidentiary hearing on that question.

See State v. Blair, 361 Or 527, 541-42, 396 P3d 908 (2017)

(concluding that appropriate disposition was to vacate and

remand where record was not clear on dispositive factual

issue and we could not presume court found that fact consis-

tent with its ultimate conclusion because the court applied

an incorrect legal standard and, therefore, misunderstood

the required factual inquiry).3 The judgment of conviction is

vacated and this case is remanded for further proceedings

consistent with this opinion.

Vacated and remanded.

2

We note that defense counsel stated at one point, “Mr. Tierney, for the

State, was present at the time of the change of plea and sentencing. It was taken

in front of Judge Rigmaiden right next door.” However, the assertion of counsel is

not evidence, nor does it represent a finding by the court.

3

The parties on appeal are silent as to how, if at all, knowledge by law

enforcement is attributed to the prosecutor in the context of a double jeopardy

challenge under either the state or federal constitution. Accordingly, our disposi-

tion in this matter does not foreclose future argument that knowledge attribution

as one might find in other constitutional contexts, such as discovery, might apply.

See, e.g., United States v. Avellino, 136 F3d 249, 255 (2d Cir 1998) (“An individual

prosecutor is presumed, however, to have knowledge of all information gathered

in connection with his office’s investigation of the case and indeed ‘has a duty to

learn of any favorable evidence known to the others acting on the government’s

behalf in the case, including the police.’ ”).