State v. Shaw

                                 688

   Argued and submitted March 4, reversed and remanded April 14, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  FLYNN GRAHAM SHAW,
                    Defendant-Appellant.
               Tillamook County Circuit Court
                    18CR79086; A171422
                              

   Jonathan R. Hill, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded.
Cite as 

 (2021)                            689

        PER CURIAM
         Defendant was charged with unlawful possession
of a firearm, ORS 166.250, based on an allegation that he
unlawfully and knowingly possessed a handgun that was
concealed and accessible in a vehicle. Before trial, the parties disagreed about the definition of the word “concealed”
and how the jury ultimately would be instructed on that
point. That disagreement arose out of our decision in State v.
Harrison, 

, 

 (2018) (Harrison I),
which was pending before the Supreme Court at the time.

 (2018). In Harrison I, we had held that a firearm is “concealed” if it is hidden from view or placed out of
sight, and that the evidence in that case was sufficient to
support a finding “that the gun was shielded from the vision
or notice of a person approaching the driver from outside the
vehicle.” 

.
         The state expressed its intent to request a special
instruction based on Harrison I, telling the jury that the
term concealed “includes where a handgun is placed so as to
shield or hide it from vision or notice of a person approaching the driver from the outside of the vehicle.” Defendant
filed a motion asking the court to reject our formulation
in Harrison I and the state’s proposed definition, because,
among other things, the definition would be too expansive
depending on the direction from which a person approached
the driver. The court denied defendant’s motion, explaining
that Harrison I “looks on appeal to the Supreme Court, but
right now this would be the valid case law on this statute.
And so the Court would need to apply that.”
        Defendant thereafter entered a conditional plea
of no contest, reserving his right to challenge on appeal
the trial court’s pretrial ruling adopting the reasoning in
Harrison I. See ORS 135.335(3) (with consent of the court
and the state, a defendant may enter a guilty or no-contest
plea that reserves the right to appellate review of an adverse
ruling on a specified pretrial motion).
         Defendant exercised that right to appellate review
and, in the meantime, the Supreme Court decided State v.
Harrison, 

, 

 (2019) (Harrison II).
In that decision, the Supreme Court refined our definition of
690                                                State v. Shaw

the term “conceal,” accounting for the manner in which the
driver is approached:
   “We conclude that, in the context of ORS 166.250(1)(b), the
   legislature intended that a handgun is ‘concealed’ in a vehicle if the placement of the gun would fail to give reasonable
   notice of the gun’s presence, through ordinary observation,
   to a person actually coming into contact with the occupants
   of the vehicle and communicating in the manner typical of
   such a contact—such as through an open window.”

 (emphasis added).
         The trial court’s pretrial ruling that it would apply
Harrison I was, of course, correct at the time. In light of
Harrison II, however, it would now be wrong to apply
Harrison I, entitling defendant to reversal of the court’s ruling. See State v. Ulery, 

, 

 (2020)
(appellate courts will reverse based on the law at the time
of the appellate decision, even though the trial court did not
make a mistake in applying then-existing law). We therefore
reverse and remand so that defendant can elect whether to
withdraw his plea. See ORS 135.335(3) (“A defendant who
finally prevails on appeal may withdraw the plea.”).
         Reversed and remanded.