State v. Borovets

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAOT-XX-XXXXXXX 20-JUN-2025 07:59 AM Dkt. 5 ODSLJ NO. CAOT-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I JASON FLETCHER, Petitioner, v STATE OF HAWAI I, Respondent. ORDER (By: Leonard, Acting Chief Judge, Hiraoka, Wadsworth, JJ.) Upon review of the record, the court finds that self- represented Petitioner Eric Fletcher's (Fletcher) April 25, 2025 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody appears to seek affirmative relief in the nature of a federal petition for writ of habeas corpus, which this court lacks jurisdiction to decide. Therefore, IT IS HEREBY ORDERED that case No. CAOT-XX-XXXXXXX is dismissed for lack of jurisdiction without prejudice to Fletcher seeking relief from the appropriate court having jurisdiction. Dated: Honolulu, Hawai i June 20, 2025. /s/ Katherine G. Leonard Acting Chief Judge /s/ Keith K. Hiraoka Associate Judge /s/ Clyde J. Wadsworth Associate Judge

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 07:58 AM Dkt. 65 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. CHARLESTON MAHOE, Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) AND STATE OF HAWAI#I, Plaintiff-Appellee, v. CHARLESTON MAHOE, SR., Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT SUMMARY DISPOSITION ORDER (By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.) Defendant-Appellant Charleston Mahoe, also known as Charleston Mahoe, Sr. (Mahoe), appeals from the following orders (together, the Denial Orders) entered by the Circuit Court of the First Circuit: (1) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings" in case no. 1CPC-XX-XXXXXXX (Case 823); and (2) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings," in case no. 1CPC-XX-XXXXXXX (Case 829).1/ On June 22, 2017, Plaintiff-Appellee State of Hawai#i (State) charged Mahoe in Case 823 with Count 1, Assault in the Second Degree, and Count 2, Violation of a Temporary Restraining Order. On June 23, 2017, the State charged Mahoe in the 829 Case 1/ The Honorable Shirley M. Kawamura presided in both cases.  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER with Counts 1 through 3, Terroristic Threatening in the First Degree, and Counts 4 through 9, Violation of a Temporary Restraining Order. Mahoe pleaded no contest to all counts in both cases, and on December 19, 2017, the circuit court sentenced him to HOPE probation. On June 24, 2022, the State moved in both cases to revoke Mahoe's probation and resentence him. On December 22, 2022, Mahoe filed a Motion to Dismiss Proceedings (Motion to Dismiss) in each case. Mahoe argued that the Hawai#i Supreme Court's decision in State v. Obrero, 151 Hawai#i 472, 517 P.3d 755 (2022), required dismissal due to the State's failure to comply with HRS § 801-1's indictment-or- information requirement. On February 28, 2023, the circuit court entered the Denial Orders, which denied the respective Motions to Dismiss. On May, 11, 2023, the circuit court filed Orders of Resentencing Revocation of Probation. On appeal, Mahoe contends that the circuit court erred in applying "the Motta/Wells standard" to his "Obrero claim" and denying his Motions to Dismiss on that basis. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Mahoe's appeal as follows: The Hawaii Supreme Court has held that "Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendants who pled out or to defendants convicted after a trial." State v. Bautista, 153 Hawai#i 284, 289, 535 P.3d 1029, 1034 (2023). The supreme court further held that "defendants awaiting sentencing . . . are foreclosed from having their pleas nullified or their trial convictions overturned" pursuant to Obrero. Id. Here, Mahoe pled out, was convicted, and was sentenced to probation with special conditions before Obrero was decided. He was awaiting resentencing when he first raised his argument based on Obrero. Pursuant to Bautista, Obrero did not apply to 2  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER his cases. Accordingly, the circuit court did not err in denying the Motions to Dismiss. Therefore, the respective February 28, 2023 Denial Orders entered by the Circuit Court of the First Circuit in Case 823 and Case 829 are affirmed. DATED: Honolulu, Hawai#i, June 18, 2025. On the briefs: /s/ Katherine G. Leonard Taryn R. Tomasa, Acting Chief Judge Deputy Public Defender, for Defendant-Appellant. /s/ Keith K. Hiraoka Brian Vincent, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee. /s/ Cly

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 08:02 AM Dkt. 68 SO NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I STATE OF HAWAI I, Plaintiff-Appellee, v. ROBERT ERRTTE MILLARD, Defendant-Appellant APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NOS. 1DCW-XX-XXXXXXX and 1DCW-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Defendant-Appellant Robert Errtte Millard (Millard) appeals from (1) the July 7, 2023 Notice of Entry of Judgment and/or Order (1DCW-XX-XXXXXXX Judgment) in 1DCW-XX-XXXXXXX,1 and (2) the August 11, 2023 Notice of Entry of Judgment and/or Order (1DCW-XX-XXXXXXX Judgment) in 1DCW-XX-XXXXXXX,2 entered by the Honolulu Division of the District Court of the First Circuit (District Court), in favor of Plaintiff-Appellee State of Hawai i (State).3 Millard raises a single point of error on appeal, arguing that the District Court erred in denying his motion to 1 The Honorable Thomas Haia presided. 2 The Honorable Myron Takemoto presided. 3 We consolidated the CAAP-23-449 and CAAP-23-524 appeals on December 13, 2023. In CAAP-23-449, Millard appeals the 1DCW-XX-XXXXXXX Judgment, and in CAAP-23-524, he appeals the 1DCW-XX-XXXXXXX Judgment.  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER dismiss due to a defective complaint because the State did not separately execute the declaration. Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Millard's point of error as follows: On November 28, 2022, the State charged Millard via Complaint in 1DCW-XX-XXXXXXX as follows: The undersigned Deputy Prosecuting Attorney [(DPA)] of the City and County of Honolulu, State of Hawai i charges: On or about November 27, 2022, in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD did intentionally, knowingly, or recklessly cause bodily injury to wit, physical pain, to [Complaining Witness (CW)], thereby committing the offense of Assault in the Third Degree, in violation of Section 707-712(1)(a) of the Hawai i Revised Statutes. "Bodily injury" includes physical pain, illness, or any impairment of physical condition. I, [DPA], declare under penalty of law that the foregoing is true and correct to the best of my knowledge and belief. The 1DCW-XX-XXXXXXX Complaint was dated and electronically signed by the DPA. On March 14, 2022, the State charged Millard via Complaint in 1DCW-XX-XXXXXXX as follows: The undersigned Deputy Prosecuting Attorney of the City and County of Honolulu, State of Hawai i charges: COUNT 1: On or about March 11, 2022, in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD did intentionally, knowingly, or recklessly cause bodily injury to [CW], thereby committing the offense of Assault in the Third Degree, in violation of Section 707-712(1)(a) of the Hawai i Revised Statutes. COUNT 2: On or about March 11, 2022 in the City and County of Honolulu, State of Hawai i, ROBERT ERRTTE MILLARD, with intent to harass, annoy, or alarm [CW], did strike, shove, kick, or otherwise touch [CW] in an offensive manner and/or subject [CW] to offensive physical contact and/or did insult, taunt, or challenge [CW] in a manner likely to provoke an immediate violent response and/or that would cause [CW] to reasonably believe that ROBERT ERRTTE MILLARD intended to cause bodily injury to [CW] or damage to the property of [CW] thereby committing the offense of 2  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Harassment, in violation of Section 711-1106(1)(a) and/or 711-1106(1)(b) of the Hawai i Revised Statutes. I, [DPA], declare under penalty of law that

No. 558 June 25, 2025 403 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JONATHAN CORY ANDREWS, Defendant-Appellant. Yamhill County Circuit Court 22CR50352; A185366 Cynthia L. Easterday, Judge. On appellant’s petition for reconsideration of Appellate Commissioner’s order of dismissal filed October 22, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, for petition. Before Egan, Presiding Judge, Lagesen, Chief Judge, and Joyce, Judge. LAGESEN, C. J. Reconsideration allowed; order of dismissal adhered to. 404 State v. Andrews LAGESEN, C. J. This is a criminal case in which defendant filed an untimely notice of appeal. When alerted to that fact by a show cause order, defendant filed an untimely motion for late appeal under ORS 138.071(5). The court, by order of the Appellate Commissioner, dismissed the appeal as untimely. Defendant has petitioned for reconsideration, arguing that this appeal should proceed, notwithstanding its double untimeliness problem. The Appellate Commissioner referred the petition for reconsideration to the Motions Department for the purpose of resolving the matter by way of prec- edential opinion. We allow reconsideration for that pur- pose. On reconsideration, we conclude, as did the Appellate Commissioner, that defendant’s failure to file a timely notice of appeal or a timely motion for late appeal means that this appeal must be dismissed for lack of jurisdiction. Both ORS 19.270, made applicable to criminal pro- ceedings by ORS 138.015, and ORS 138.071 generally require, among other things, that a notice of appeal be timely filed for the Court of Appeals to have jurisdiction over an appeal. ORS 19.270 (1), (2)(b). The legislature has, however, carved out an exception to that requirement in ORS 138.071(5). That statute directs that “the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits” set forth in those statutes provided the defendant (1) files a motion that makes the showing described in ORS 138.071(5)(a) and (2) files the motion “no later than 90 days after the party receives notice that the order or judgment has been entered.” ORS 138.071(5)(c); State v. Smith, 330 Or App 397, 399, 543 P3d 1258 (2024) (describing process for filing motion for late appeal). In this case, it is undisputed that defendant neither filed a timely notice of appeal, nor filed a timely motion for late appeal. Defendant nevertheless argues that his untimely-filed notice of appeal is sufficient to confer jurisdiction on this court because it was filed within the time for filing a motion for late appeal, albeit without the motion required by ORS 138.071(5). In support of that argument, he points to our deci- sion in Smith. There, we concluded that the defendant’s fail- ure to include a proposed notice of appeal, as required by ORS Cite as 341 Or App 403 (2025) 405 138.071(5)(c), with the defendant’s timely-filed motion for late appeal did not deprive the court of jurisdiction to grant the timely-filed motion for late appeal. Smith, 330 Or App at 399. Defendant invites us to read Smith to stand for the following: “In short, so long as the defendant files something noti- fying the court and the state of the defendant’s intent to appeal within 90-days, the failure to comply with the many requirements for notices of appeal, including the failure to file an accompanying motion for leave to file a late notice of appeal, can be cured by timelines set by the court.” We reject that invitation for two reasons. First, it is detached from the procedure set forth by the plain terms of ORS 138.071(5). Were we to adopt defen- dant’s proposed approach, we would effectively be rewriting ORS 138.071(5) to craft a process entirely different from the one enacted by the legislature. Rewriting statutes is not part of the judicial function. Bellshaw v. Farmers Ins. Co., 373 Or 307, 326-27, 567 P3d 434 (2025). Second, defendant’s proposed approach is at odds with longstanding Oregon law treating the timelines for filing appeals as jurisdictional. In addressing whether the defect in Smith was a jurisdictional one, we looked, in part, to case law addressing what appeal-filing defects were jurisdictional and what defects were merely technical. Smith, 330 Or App at 403-04 (discussing Pohrman v. Klamath Co. Comm., 272 Or 390, 538 P2d 70 (1975)). That case law indicated that the key jurisdictional requirements were the timely filing and service of the notice of appeal, something that, in Smith, supported

No. 569 June 25, 2025 455 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON RANDY STEVEN ROGERS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A185112 Submitted May 9, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for petitioner. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Reversed and remanded. 456 Rogers v. Board of Parole EGAN, J. Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision (board) that set petitioner’s sex offender notification level at Level 2. We reverse and remand the board’s final order.1 The board concedes that it erred in assessing peti- tioner’s risk of reoffending without considering his offense- free time in the community. We agree with and accept the concession. Under our decisions in Thomsen v. Board of Parole, 333 Or App 703, 554 P3d 308, rev den, 373 Or 81 (2024), and Allen v. Board of Parole, 334 Or App 447, 557 P3d 178, rev den, 373 Or 121 (2024), the board was required to assess petitioner’s risk of reoffense as of the time of the assessment. The appropriate remedy is to reverse and remand to the board for further proceedings. Thomsen, 333 Or App at 717. Reversed and remanded. 1 As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel.