Rogers v. Board of Parole

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAOT-XX-XXXXXXX 20-JUN-2025 07:59 AM Dkt. 5 ODSLJ NO.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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 08:02 AM Dkt. 68 SO NOS.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

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

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

360 June 18, 2025 No. 548 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 STATE OF OREGON, Plaintiff-Respondent, v. NATHANIEL FOREST LaFLAMME, Defendant-Appellant. Marion County Circuit Court 22CR29404; A180399 Tracy A. Prall, Judge. Submitted November 25, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, E. Nani Apo, Assistant Attorney General, and Lani Augustine, Certified Law Student, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge.* LAGESEN, C. J. Affirmed. ____________ * Lagesen, Chief Judge vice Mooney, Senior Judge. Nonprecedential Memo Op: 341 Or App 360 (2025) 361 LAGESEN, C. J. Defendant appeals a judgment of conviction for, among other things, one count of second-degree assault, in violation ORS 163.175. The state charged that defendant com- mitted that offense by “knowingly caus[ing] physical injury to [the victim] by means of a dangerous weapon, to-wit: a boot.” On appeal, defendant raises two unpreserved assignments of error, contending that the trial court erred by (1) failing to acquit him of second-degree assault on its own motion on the ground that the evidence was insufficient to show that his footwear was a dangerous weapon; and (2) failing to instruct the jury that it had to find that defendant knew that his foot- wear had the characteristics of a dangerous weapon. Because those assigned errors are unpreserved, defendant requests that we review for plain error and exercise our discretion to correct those ostensible plain errors. We affirm. An unpreserved assignment of error is subject to review and potential correction pursuant to plain-error review if the alleged error is “obvious and not reasonably in dispute.” State v. Perez, 373 Or 591, 604, 568 P3d 940 (2025). We start by assessing defendant’s first contention, that the trial court plainly erred by failing to determine, on its own motion, that the evidence was insufficient to support a finding that defendant’s shoe was a dangerous weapon. To prove that defendant’s boot was a “dangerous weapon,” the state had to present evidence that under the circumstances in which defendant’s boot was used (stomping on the victim’s eye after pushing her to the ground), defendant’s footwear was “readily capable of causing death or serious physical injury.” ORS 161.015(1). The victim testified that defen- dant’s shoe was a Romeo work shoe: “It’s a Romeo. It’s a type of work shoe in the line of—like you’d call it country-looking wear.” The victim further testified that the boot was “pretty decent” in terms of heaviness. Finally, the victim testified that she could not open her eyes for a couple of days, that the doctor had to pry her eye open, and that her eye took a cou- ple of months to heal. Given that evidence about the nature of defendant’s shoe and the extent of injury inflicted, it is not obvious to us that the evidence about defendant’s footwear was insufficient to permit a finding that defendant’s shoe 362 State v. LaFlamme was readily capable of causing serious physical injury under the circumstances in which defendant used it. In arguing to the contrary, defendant emphasizes State v. Werder, 112 Or App 179, 828 P2d 474 (1992), in which we concluded that the evidence was insufficient to permit a finding that the defendant’s tennis shoes were used as a dangerous weapon when the defendant kicked the victim. Defendant urges us to conclude that the facts in this case are so closely aligned to those in Werder that it is neces- sarily obvious that, as in Werder, the evidence is not suffi- cient to permit a finding that the shoe was readily capable of causing serious physical injury under the circumstances in which defendant used it. In Werder, however, there was “no description of [the] tennis shoe in evidence.” Id. at 182. Here, the record offers more about the character of the shoe: a decently heavy Romeo-style work shoe.1 Given that differ- ence between the record in this case and the one in Werder, it is not obvious that Werder compels the conclusion that the evidence here is insufficient to support a finding that defendant’s shoe was a dangerous weapon under the circum- stances in which he used it. With respect to defendant’s second assignment of error, the state concedes that the trial court