Md. Dept. of Health v. Boulden

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 12-JUN-2025 08:05 AM Dkt. 52 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I SAMUEL COOPER, JR., Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPN-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Petitioner-Appellant Samuel Cooper, Jr. (Cooper), self- represented, appeals from the October 3, 2023 Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order Denying Fifth Rule 40 Petition).1 Cooper does not identify points of error on appeal, as such. Nonetheless, we address Cooper's argument to the extent that we are able to discern it. On October 18, 2022, Cooper filed a Petition for Post-Conviction Relief pursuant to Hawai i Rules of Penal Procedure (HRPP) Rule 40 (Fifth Rule 40 Petition) raising a single ground for relief: that the prosecutor used information charging in the underlying criminal case. Cooper seeks relief from the Circuit Court's denial of the Fifth Rule 40 Petition. The underlying criminal case stemmed from a 1999 murder. On September 3, 1999, Cooper was charged by way of complaint with Murder in the Second Degree, in violation of Hawaii Revised Statutes § 707-701.5 (2014), convicted after a 1 The Honorable Trish K. Morikawa presided.  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER jury trial, and sentenced to life imprisonment with the possibility of parole. Cooper appears to argue, as he argued in various submissions to the Circuit Court, that he was entitled to a grand jury indictment based on State v. Obrero, 151 Hawai i 472, 517 P.3d 755 (2022). 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 Cooper's appeal as follows: The Hawai i 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 challenging a charging instrument's validity for the first time in an HRPP Rule 40 petition are foreclosed from having their trial convictions overturned pursuant to Obrero. Id. Accordingly, we conclude that Cooper is not entitled to relief. Therefore, the Circuit Court's October 3, 2023 Order Denying Fifth Rule 40 Petition is affirmed. In addition, Cooper's Motion for Immediate Decision and Relief, filed on November 27, 2024, is hereby denied. DATED: Honolulu, Hawai i, June 12, 2025. On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Samuel Cooper, Jr., Petitioner-Appellant, pro se. /s/ Keith K. Hiraoka Associate Judge Loren J. Thomas Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth for Respondent-Appellee. Associate Judge 2

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:50 PM v No. 370182 Van Buren Circuit Court DONTE JAMELLE SMITH, LC No. 2023-024625-FH Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. YOUNG, J. (concurring). I write separately to discuss the evidence supporting fourth-degree fleeing and eluding. Let’s revisit the record underlying this conviction—trial testimony from Michigan State Police Trooper Alex Sussdorf. Sussdorf testified that he was the trooper who conducted the traffic stop of Smith. Sussdorf testified, “I activated my siren, multiple different tones, airhorn and eventually after an extended period of time, got on my . . . loudspeaker, and gave multiple commands to stop the vehicle.” During that time, Smith had ventured over to the shoulder of I-94 “more than a couple times” but ultimately continued down the highway to an exit ramp. At oral argument, Smith’s appellate counsel said that Smith took the first possible exit he could off of I-94. As he was exiting the freeway, Smith threw a gun out of the car window. According to Sussdorf, “[t]he stop eventually occurred off the freeway, off M-51 in the Marathon gas station right there at the corner of M-51 and I-94.” In the light most favorable to the prosecutor, Smith, who was from out-of-state and had his minor children with him in the vehicle, drove about four minutes1 without accelerating to a gas 1 A patrol car dash cam was admitted as an exhibit at trial and was not submitted to this Court to review. According to the transcript, the playing of the footage at trial of the initial traffic violation to the exit ramp took four minutes. -1- station (which is objectively safer, better-lit, and has the potential to record the encounter), and in the interim, tossed a gun. There is no question that Smith, albeit momentarily, “willfully fail[ed] to obey” the lawful direction to stop over the matter of minutes it took him to get to “the first available gas station.”2 But he did not fail to obey the police order “by increasing the speed of the motor vehicle” or “extinguishing the lights of the motor vehicle.” The question is whether Smith momentarily failed to obey by “otherwise attempting to flee or elude the officer.” On the present record before this Court, I agree with the majority that Smith tossing a gun from his car while driving a distance of two miles is enough to support that he was trying to avoid being caught and thus, eluding, the police.3 As a result, I concur. /s/ Adrienne N. Young 2 This is a quote from appellant’s brief. I cannot confirm the accuracy of this statement based on the record as I am without the dash cam video or any other record support for this claim. There is no testimony on the record refuting this. 3 At oral argument, appellate defense counsel posited that the crime of fleeing and eluding pertains only to the adherence or nonadherence to the lawful traffic stop order and not eluding a separate criminal offense (e.g. tossing a gun to avoid a gun possession charge while in the process of pulling over is destruction of evidence or something similar, not fleeing and eluding.). This argument is interesting but not before this Court at this time. It does present an issue where an opinion from the Michigan Supreme Court would be welcome to the bench and bar. -2-

No. 525 June 4, 2025 211 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 SIRGIORGIO SANFORD CLARDY, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A181462 Submitted on May 15, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Oregon Public Defense Commission, filed the opening brief for peti- tioner. Sir Giorgio Sanford Clardy filed the supplemental brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. PER CURIAM Affirmed. 212 Clardy v. Board of Parole PER CURIAM Petitioner is an adult in custody who was sentenced as a dangerous offender to serve 300 months with a man- datory minimum of 75 months on multiple felony counts. Petitioner assigns error to the Board of Parole and Post- Prison Supervision’s (the board) order denying him release and deferring parole consideration for two years. He argues that the board applied improper standards to the deter- mination of whether he was eligible for release, and that the board’s determinations are unsupported by substantial evidence resulting in a final order that lacked substantial reason. The board argues that it applied the proper stan- dards to the release determination according to our prior decisions, and that its factual findings were based upon sub- stantial evidence in the record. We affirm. We review a board order “for legal error, substantial evidence, and substantial reason.” Bell v. Board of Parole, 283 Or App 711, 713, 391 P3d 907, rev den, 361 Or 645 (2017). First, we address petitioner’s argument that the board applied the wrong standard. When a person is sentenced as a dangerous offender, the trial court has made a finding that the person was suffering from a severe personality disorder that predis- posed them to commit crimes that seriously endangered the life or safety of another. We have previously determined, in a case not materially distinguishable from this one, that the test the board applied, including whether petitioner still suf- fered from a mental disorder that predisposed him to com- mit any crime, is appropriate. Guzek v. Board of Parole, 325 Or App 795, 804, 530 P3d 510, rev den, 371 Or 476 (2023). Similar to that case, we have considered the record, and determine that the board’s intermediate determinations that petitioner lacked remorse for the victims, failed to engage in mental health treatment, and resisted being supervised as a sex offender, are amply supported by evidence in the record, and petitioner’s own statements to the board—quoted in the board’s letter of deferral—reinforce our determination that the board considered the appropriate standard in denying release and deferring the next parole consideration hearing. We also find the psychologist’s finding that peti- tioner is currently suffering from antisocial personality Nonprecedential Memo Op: 341 Or App 211 (2025) 213 disorder to be adequately supported by a preponderance of evidence in the record, despite problems associated with the Personality Assessment Inventory test. The board’s duty at the parole consideration hearing is to determine whether petitioner has shown by a preponderance of the evidence that he is no longer dangerous at the time of the parole con- sideration hearing. Davis v. Board of Parole, 341 Or 442, 448, 144 P3d 931 (2006). Here, the board adequately con- nected its reasons for denial to evidence in the record, and it did not err. Affirmed.

170 June 4, 2025 No. 516 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 MICHAEL THOMAS CRAW, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 20CV11843; A182186 J. Burdette Pratt, Senior Judge. Submitted March 18, 2025. Corbin Brooks and Equal Justice Law filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent. Michael T. Craw filed the supplemental brief pro se. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 341 Or App 170 (2025) 171 HELLMAN, J. Petitioner appeals from a judgment that denied his petition for post-conviction relief on five claims related to constitutionally ineffective and inadequate assistance of counsel in the underlying criminal case in which he pleaded no contest to 10 counts of first-degree encouraging child sexual abuse, ORS 163.684, and 10 counts of second- degree encouraging child sexual abuse, ORS 163.686. On appeal, he raises two assignments of error through coun- sel and three assignments of error pro se. In his counseled assignments, he claims that the post-conviction court erred in ruling that trial counsel was not ineffective for failing to advise petitioner that he could file a successful motion to suppress images obtained from his computer and for failing to advise petitioner that he had a right to a unanimous jury verdict. In his three supplemental pro se assignments of error, petitioner claims that the post-conviction court erred in ruling that trial counsel was not ineffective for failing to file a motion to suppress on the grounds that the warrant lacked probable cause or on the grounds that, among other things, it did not comply with the statutory requirements under ORS 133.615, and for failing to file a motion to dis- miss on the grounds that his arrest was unlawful. We reject petitioner’s counseled assignments and first supplemental assignment because we conclude that petitioner did not establish his claims for relief. We reject petitioner’s second and third supplemental assignments as unpreserved. We therefore affirm. We review the post-conviction court’s decision for legal error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). “A post-conviction court’s findings of historical fact are binding on this court if there is evidence in the record to support them.” Id. A petitioner claiming inadequate assis- tance of counsel under Article I, section 11, of the Oregon Constitution has the burden “to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result.” Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991) (“Only those acts or omissions by counsel which have a tendency to affect the 172 Craw v. Miller result of the prosecution can be regarded as of constitutional magnitude.” (Internal quotation marks and brackets omit- ted.)). Under the federal standard, a petitioner is required to “show that counsel’s representation fell below an objective standard of reasonableness” and that, as a result, petitioner was prejudiced. Strickland v. Washington, 466 US 668, 688, 104 S Ct 2052, 80 L Ed 2d 674 (1984). As the Oregon Supreme Court has recognized, those standards are “func- tionally equivalent.” Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons, 355 Or 598, 330 P3d 595 (2014). Under both the state and federal constitutions, “[t]o prove prejudice after pleading guilty, a petitioner must show a ‘reasonable probability’ that they would have pro- ceeded to trial if their lawyer had advised them correctly.” Blain v. Cain, 327 Or App 584, 588, 536 P3d 623 (2023), rev den, 372 Or 22 (2024). Motion to Suppress Evidence. In his first assignment of error, petitioner argues that the post-conviction court erred when it ruled that “trial counsel was not ineffective for failing to advise petitioner that he could file a success- ful motion to suppress images obtained from his computer.” In his first supplemental pro se assignment of error, peti- tioner also assigns error to the trial counsel’s failure to file a motion to suppress on the grounds that the warrant lacked probable cause. Because these assignments of error overlap, we address and resolve them together.

No. 517 June 4, 2025 175 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 Kevin J. LEE, Petitioner, v. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent. Department of Consumer and Business Services INS190008; A182238 Argued and submitted April 1, 2025. Kevin J. Lee argued the cause and filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. 176 Lee v. DCBS HELLMAN, J. Petitioner, appearing pro se, seeks judicial review of a final order of the Department of Consumer and Business Services (DCBS) that revoked his insurance licenses and assessed civil penalties. On judicial review, petitioner argues that the final order is not supported by substantial evidence. We affirm. “We review an agency’s order in a contested case for errors of law, ORS 183.482(8)(a), substantial evidence, ORS 183.482(8)(c), and substantial reason.” Dorn v. Teacher Standards and Practices Comm., 316 Or App 241, 243, 504 P3d 44 (2021). “Substantial evidence exists to support a find- ing of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482. “Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclu- sion that the agency draws from them.” Dorn, 316 Or App at 243 (internal quotation marks omitted). “Our review is restricted to the record.” Id. (citing ORS 183.482(7)); see also ORS 183.417(9) (defining “[t]he record in a contested case”). A detailed recitation of the facts would not benefit the bench, the bar, or the public. Petitioner held securities sales, insurance provider, and insurance consultant licenses in Oregon for several years. In 2017, the Federal Industry Regulatory Authority (FINRA) contacted petitioner to determine if he had violated any federal securities laws when he provided investment advice to his former neigh- bors. In 2018, petitioner filed a resident insurance license renewal application with the state and represented that he had not “been named or involved as a party in an adminis- trative proceeding, including FINRA sanction.” DCBS sub- sequently alleged that petitioner “act[ed] as a state invest- ment adviser in Oregon without a state investment license,” provided “misleading information” on his insurance license applications by not disclosing the FINRA investigation, and that he engaged in “fraudulent, coercive, or dishonest prac- tices.” At the contested hearing, the daughter of petitioner’s former neighbors, petitioner, and a DCBS financial enforce- ment officer testified, and the administrative law judge (ALJ) received into evidence numerous exhibits offered by Nonprecedential Memo Op: 341 Or App 175 (2025) 177 each party. The ALJ ruled in favor of DCBS and issued a proposed order. DCBS adopted the ALJ’s proposed order as the final order. We have reviewed each of petitioner’s 18 separate arguments concerning the final order and conclude that petitioner presents no basis to reverse. Many of petitioner’s arguments dispute DCBS’s interpretation of the facts, but we do not reweigh evidence on appeal. See Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017) (“When in a review role, a court does not review for the better evidence.”). Many of petitioner’s arguments also depend on his testimony— which DCBS found not credible—and we do not revisit cred- ibility on appeal. See id. (“A substantial evidence review does not entail or permit the reviewing tribunal to reweigh or to assess the credibility of the evidence that was presented to the fact-finding body.” (Internal quotation marks omitted.)) And petitioner’s arguments do not establish that DCBS committed any legal error in its analysis. In sum, substan- tial evidence supports DBCS’s findings of fact, and the order provides substantial reason for its conclusions. Petitioner has not demonstrated any legal error on DCBS’s part. Affirmed.