S056256, Opinion — State v. Dominguez-Coronado

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# 396

On petitions for review filed July 9 (S056256),* July 15 (S055025), ** July 15
(S055324), *** petitions for review denied October 23, 2008

STATE OF OREGON,
Respondent on Review,
v.
FERNANDO DOMINGUEZ-CORONADO,
Petitioner on Review.
(CC 04C50555; CA A128779; SC S056256)
STATE OF OREGON,
Respondent on Review,
v.
MARC MEALEY HOLCOMB,
Petitioner on Review.
(CC 99122871; CA A116966; SC S055025)
STATE OF OREGON,
Respondent on Review,
v.
JESS MONRO WATTS,
aka, Mark Monro Rosenthaw,
Petitioner on Review.
(CC C040170CR; CA A128644 (Control)
STATE OF OREGON,
Respondent on Review,
v.
MARK MONRO ROSENTHAW,
aka, Jess Monro Watts,
Petitioner on Review.

(CC C0402446CR; CA A128645; SC S055324)
(Cases Consolidated for Opinion)

198 P3d 908

\* Appeal from Marion County Circuit Court, Albin W. Norblad III, Judge.
219 Or App 315, 182 P3d 322 (2008).

** Order of the presiding judge denying petition for reconsideration dated
May 21, 2008.

*** Order of the presiding judge denying petition for reconsideration dated
April 23, 2008.

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## En Banc

Meredith Allen, Senior Deputy Public Defender, Salem,
filed the petition for review for petitioner Dominguez-
Coronado. With her on the petition was Peter Gartlan, Chief
Defender, Office of Public Defense Services.

Eric Johansen, Senior Deputy Public Defender, Salem,
filed the petitions for review for petitioners Holcomb, Watts,
and Rosenthaw. With him on the petition was Peter Gartlan,
Chief Defender, Office of Public Defense Services.

No appearance contra.

PER CURIAM

Petitions for review are denied.

Gillette, J., concurred and filed an opinion, in which
Walters, J., joined.

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398

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GILLETTE, J., concurring.

The court today denies petitions for review in three
cases, State v. Dominguez-Coronado, 219 Or App 315, 182
P3d 322 (2008), State v. Holcomb, order of the presiding judge
denying petition for reconsideration dated May 21, 2008, and
State v. Watts, order of the presiding judge denying petition
for reconsideration dated April 23, 2008. I concur in those
decisions, but write separately to call to the attention of the
Court of Appeals a concern that that court may be misinter-
preting the scope of its authority to reconsider its decisions.

Each of these three cases involved a criminal defen-
dant's request to the Court of Appeals to reconsider the
court's earlier decision in each defendant's case. Reconsider-
ation of a decision by the Court of Appeals is governed by
Oregon Rule of Appellate Procedure (ORAP) 6.25, which pro-
vides, in part:

"(1) * * * A party seeking reconsideration of a decision
of the Court of Appeals shall file a petition for reconsidera-
tion. A petition for reconsideration shall be based on one or
more of these contentions:

"(d) a claim that there has been a change in the stat-
utes or case law since the Court of Appeals' decision[.]"

Each defendant's petition for reconsideration arose
out of essentially parallel facts. Each had been charged with
offenses, proof of which involved (in part) evidence of the
result of scientific tests. In each case, the state had offered
the evidence through a laboratory report prepared by a cri-
minalist; the criminalist did not testify. In no case did the
defendant object at the time to that procedure. Each defen-
dant was convicted. Each appealed to the Court of Appeals.
None made any issue of the laboratory reports being admit-
ted without supporting testimony from a criminalist. The
Court of Appeals affirmed on each appeal.

Shortly after the appeals were decided, and while
petitions for review in each case were pending before this
court, this court issued its opinion in State v. Birchfield, 342
Or 624, 157 P3d 216 (2007), in which the court held that a

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trial court's admission of a laboratory report without requir-
ing the state to produce at trial the criminalist who prepared
the report violated a defendant's right to confront witnesses
against him or her under Article I, section 11, of the Oregon
Constitution.1 Id. at 631-32. Thereafter, each of the present
petitioners sought reconsideration by the Court of Appeals
under ORAP 6.25(1)(d), asserting that the court should
reconsider each case and hold that there had been error in
each under Birchfield.

The Court of Appeals denied reconsideration in each
of the three cases. It stated its rationale for denial of reconsid-
eration in Dominguez-Coronado:2

"In this case, defendant contends that his petition for
reconsideration is supported by a 'change in the * * * case
law,' namely, the Supreme Court's decision in Birchfield
\* **. A 'change in the * * * case law,' however, authorizes
reconsideration of a prior opinion of this court on matters
that already have been put before it. It does not provide a
basis for asserting an entirely new claim of error not previ-
ously asserted."

Dominguez-Coronado, 219 Or App at 318 (emphasis and
ellipses in original). The present petitions for review
followed.

For my part, I do not find justification in either the
text or context of ORAP 6.25(1) for the Court of Appeals' con-
clusion that the alleged error that is the basis for the petition
for reconsideration must be one that "already [has] been put
before" the Court of Appeals. The text of ORAP 6.25(1) pro-
vides, without limitation, for "reconsideration of a decision of
the Court of Appeals." (Emphasis added.) In my view, noth-
ing in that wording confines the Court of Appeals' reconsid-
eration to arguments that already had been made to that
court, but which had acquired new legitimacy due to changes
in statute or case law. See Kentner v. Gulf Ins. Co., 298 Or 69,
75, 689 P2d 955 (1984) (court chose to reconsider prior opin-
ion on basis of moving party's argument never advanced until

1 Article I, section 11, of the Oregon Constitution provides:

"In all criminal prosecutions, the accused shall have the right * * * to meet the
witnesses face to face[.]"

2 The court denied reconsideration in each of the other cases in orders citing
Dominguez-Coronado.

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petition for reconsideration). It thus appears to me that the
Court of Appeals' view that there is no legal basis for recon-
sidering these defendants' petitions for review probably is
incorrect.

That said, however, I concur with this court's choice
not to allow any of the three petitions for review. I take that
view because, unlike the situation in Birchfield (the case on
which the petitioners rely), none of the petitioners in the
three cases now before us objected to the admissibility of the
laboratory report as hearsay or notified the state that he
wanted the state to produce the criminalist at trial.
Birchfield did not obviate those requirements. It follows that
remand of these cases to the Court of Appeals for reconsider-
ation, when good reason exists for that court to deny recon-
sideration, would be asking that court to make an unwar-
ranted expenditure of its precious judicial time.

I concur.

Walters, J., joins in this concurring opinion.