State v. Jackson

No. 393              April 30, 2025                 267

  This is a nonprecedential memorandum opinion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.
                 DWAYNE JACKSON,
                 Defendant-Appellant.
              Harney County Circuit Court
                 23CR44303; A183201

  Robert S. Raschio, Judge.
  Submitted March 14, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
  Jennifer S. Lloyd, Assistant Attorney General, waived
appearance for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  EGAN, J.
  Affirmed.
268                                          State v. Jackson

        EGAN, J.
         After a bench trial on stipulated facts, defendant
was convicted of disorderly conduct in the second degree,
ORS 166.025, and was sentenced to 12 months of bench probation. Defendant’s appointed counsel filed a brief pursuant
to ORAP 5.90 and State v. Balfour, 

, 

(1991). The brief does not contain a Section B. See ORAP
5.90(1)(b).
         We have reviewed the record, including the trial
court file, the transcript of the hearings and bench trial,
and the Balfour brief, for arguably meritorious issues. The
most contentious part of the litigation below was a discovery
dispute. The charges against defendant were filed in early
September 2023, and defendant requested discovery from
the Harney County District Attorney’s Office on September
12, 2023. The district attorney’s office refused to provide the
discovery at that time, pursuant to a policy of not providing discovery until after arraignment. Defendant then filed
a motion to compel discovery but, before that motion had
been fully litigated, defendant had been arraigned and the
state had provided the discovery sought in the motion. The
state then filed a response to defendant’s motion to compel
in which it asserted that there had been no violation but,
in any event, the motion was moot because defendant had
received the requested discovery, albeit after arraignment.
         At a subsequent hearing on the motion to compel,
defendant argued that the relevant discovery statute, ORS
135.815, had been amended in 2021 to remove a qualification that disclosures be made “after arraignment.” Or Laws
2021, ch 409, § 2. Instead, under the current version of ORS
135.815(2)(a)(B), discovery now is to be provided “in accordance with ORS 135.845,” which in turn provides that “[t]he
obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in
the circuit court or the filing of a complaint or information
charging a misdemeanor or violation of a city ordinance.”
And yet, defendant argued, the Harney County District
Attorney’s Office was adhering to its previous policy regarding the timing of discovery, even after being informed of the
statutory change. For that reason, defendant argued that
Nonprecedential Memo Op: 

 (2025)                            269

“whether or not the issue is moot … this Court should still
review the issue” because it was capable of repetition but
evading review.
          At the hearing, the court expressed some agreement with defendant’s underlying point that the district
attorney’s office’s policy was inconsistent with the statute,
but the court asked defendant to “flesh out” the constitutional harm with further briefing. Ultimately, after receiving further briefing, the trial court issued an oral ruling
in which it agreed with defendant that there was a discovery violation, but agreed with the state that defendant had
not shown any prejudice. The court explained that “there
hasn’t been any demonstration to the Court that there was
any type of loss of investigation. So I’m going to deny the
motion.” The trial court then suggested that the county consider changing its policy on the timing of discovery because
“[i]t’s only a matter of time until something happens that
creates a necessity for the Court to dismiss cases,” and the
hearing adjourned. Defendant and the state subsequently
reached an agreement that resulted in a bench trial on stipulated facts regarding one of the counts, and the state not
pursuing the other charges.
         We see no arguably meritorious issues that could be
raised with regard to the trial court’s handling of defendant’s
motion to compel discovery, or its conclusion that defendant
failed to establish any cognizable prejudice. Nor do we see
any arguably meritorious issues with regard to any other
parts of the proceedings below. We therefore affirm.1
           Affirmed.




   1
      As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Daily, 

, 

 (2024) (deciding
matter submitted through Balfour process by two-judge panel); State v. Goin, 

, 

 (2024) (same).