State v. Espinal

                                   264

Argued and submitted September 29, 2020, affirmed October 20, 2021, petition
               for review denied April 7, 2022 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 MIGUEL ANGEL ESPINAL,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     17CR75186; A168728
                               

   Thomas J. Rastetter, Judge.
   Anne Fujita Munsey, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2021)                                              265

           PER CURIAM
        Defendant appeals a judgment of conviction for
murder, ORS 163.115.1 We reject his first through third, seventh and eighth assignments of error for the reasons below.
We reject his fourth, fifth, and sixth assignments of error
without discussion. We affirm.
         In the first of three related assignments of error,
defendant contends that his right to a trial by an impartial
jury was violated because, after the verdict had been rendered in a bench trial, the trial judge was reminded that
she had represented the person who was the murder victim
in this case in an unrelated case six years before in which
that person was charged with driving under the influence
of intoxicants. According to defendant, those circumstances
are such that a “reasonable person would question the judge’s
impartiality” under the Oregon Code of Judicial Conduct
and thus the trial judge was required to disclose them,
given defendant’s right to a jury under Article I, section 11,
of the Oregon Constitution or the Sixth Amendment to the
United States Constitution. Defendant relies on the standard set out in Rule 3.10(A) of the Oregon Code of Judicial
Conduct (CJC) to evaluate whether the circumstances present an appearance of bias that would require the judge to
disqualify herself. That ethical standard involves a question
whether “a reasonable person would question the judge’s
impartiality.”2 Contending that these circumstances present a question of impartiality, defendant would extend that
ethical standard so as to require a judge’s disclosure of past
events of which the judge has no present memory—before
defendant enters a general waiver of his right to a jury.
Assuming without deciding that the ethical standard bears
    1
      The court also found defendant guilty of unlawful use of a weapon,
ORS 166.220. That verdict was merged with his conviction for murder. Judge
Karabeika conducted trial. Judge Rastetter sentenced defendant and signed the
judgment of conviction.
    2
      In part, CJC Rule 3.10(A) provides:
        “A judge shall disqualify himself or herself in any proceeding in which a
    reasonable person would question the judge’s impartiality, including but not
    limited to the following circumstances:
        “(1) The judge has a personal bias or prejudice concerning a party or
    a party’s lawyer, or personal knowledge of facts that are in dispute in the
    proceeding.”
266                                          State v. Espinal

on a criminal defendant’s right to trial by jury, we reject the
premise of the argument that the circumstances present in
this case were such that a “reasonable person would question the judge’s impartiality.” See State v. Langley, 

, 

 (2018) (considering a defendant’s
suggested reliance on the same standard).
         Defendant’s second and third assignments turn on
the same facts. Given the procedural circumstances presented, the trial court did not err in rejecting defendant’s
motion for a new trial or motion in arrest of judgment. See
ORS 135.630(1), (4) (establishing the grounds for which a
motion in arrest of judgment is available, neither of which
is present here); State v. Stewart, 

, 

 (2010) (explaining that “if a defendant waives the
right to a jury trial, ORS 136.535 does not authorize the
trial court to grant defendant a new trial”).
         In his seventh and eighth assignments of error,
defendant relies on our erroneous decision in State v. Link,

, 

 (2019), rev’d, 

,

 (2021), to argue that his sentence of life with
a mandatory minimum of 25 years violates the Eighth
Amendment to the United States Constitution. Because the
Oregon Supreme Court reversed that decision and rejected
its reasoning, Link, 

, defendant’s seventh
and eighth assignments of error are unavailing.
        Accordingly, we affirm.
        Affirmed.