October 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Special Conditions of Probation - Findings Required

Prosecutors, criminal defense lawyers, and judges are generally aware that ORS 137.540(1) lists standard conditions of probation that apply in every case, unless the court orders otherwise. And of course, additional special conditions are imposed as a part of almost every sentence that includes probation.

ORS 137.540(2) permits the court to impose special conditions of probation “that are reasonably related to the crime of conviction or the needs of the defendant for the protection of the public or reformation of the offender, or both….”

On September 8, 2005, the Court of Appeals reminded us in State of Oregon v. Robert Paul Patton that before imposing a special condition of probation, the court must make a finding that the special condition of probation is “reasonably related to the crime of conviction or the needs of the defendant for the protection of the public or reformation of the offender, or both....” In State v. Patton there was no such finding by the sentencing judge. On appeal the defendant challenged the imposition of the special condition of probation. The state conceded error on the appeal, and the Court of Appeals accepted the concession. The Court of Appeals went even further in State v. Patton to find that even though defendant did not object to the special condition at the time of sentencing, it was an error apparent on the face of the record which could be appealed even without an objection by the defendant at sentencing.

Tip: Every negotiated plea should include a stipulation from the defendant, on the record, that all special conditions of probation are “reasonably related to the crime of conviction or the needs of the defendant for the protection of the public or reformation of the offender, or both....” Absent the stipulation on the record from defense counsel, the sentencing judge should make this finding every time.

Submission of proposed orders or judgments - special rule with pro se litigants

Absent a stipulation to the form of the order or judgment, we all know that UTCR 5.100(1) requires lawyers to serve proposed orders or judgments on opposing counsel not less than three days prior to submission to the court. But were you aware that if you are dealing with a pro se litigant on the other side of your case, UTCR 5.100(3) requires you to mail the proposed order or judgment to the unrepresented party at the party’s last known address not less than seven days prior to submission to the court? And don’t forget about the three additional days that are added by ORCP 10C because of the mail service that is required by UTCR 5.100(3).

Conferring on civil motions

Certifications pursuant to UTCR 5.101 on civil motions continue to be a problem. In my “Tips from the Bench” column in November, 2004, I reminded you that UTCR 5.010(3) says the certification will be sufficient if it either “states that the parties conferred or contains facts showing good cause for not conferring.” The Multnomah County Circuit Court Civil Motion Panel agreed over a year ago that “confer” means to actually talk to each other, in person or on the phone. If your certification does not say that you actually did confer, your certification must contain facts that permit the court to conclude that you made a good faith effort to do so.

In Nelson & Nelson, 117 Or App 157, 161 (1992) the Court of Appeals ruled that the certification of compliance with UTCR 5.101 is mandatory. If the certification is absent, the court has no authority to grant the motion. It is reasonable to conclude that if the certification is deficient, the court, likewise, has no authority to grant the motion. Some judges hearing civil motions are denying motions without a hearing if the certification is not adequate. Don’t get caught in this bind. Make sure your UTCR 5.010 certification is sufficient.