On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Williams v. Palmateer, 184 Or. App. 761, 58 P.3d 244 (2002), rev. denied, 335 Or. 656, 75 P.3d 899 (2003). B. Federal Proceedings
On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Williams v. Palmateer, 184 Or. App. 761, 58 P.3d 244 (2002), rev. denied, 335 Or. 656, 75 P.3d 899 (2003). On March 16, 2007, petitioner filed his Petition for Writ of Habeas Corpus raising Nineteen Claims and numerous sub-claims.
As we have explained in prior cases addressing unpreserved merger claims, "although the effects of merger are not always immediately apparent, they can be real and varied." State v. Hathaway, 207 Or.App. 716, 718, 143 P.3d 545, rev den, 342 Or. 254 (2006) (citing State v. Walraven, 187 Or.App. 728, 730, 69 P.3d 835, rev den, 335 Or. 656 (2003)). For the same reasons provided in those prior cases, we exercise our discretion to correct the plain error.
For example, ORS 90.130 prevented tenants in an eviction proceeding who "deliberately" avoided personal service of a termination notice, and who in fact received a notice that was slipped under their door, from enforcing the statutory requirement for personal delivery of the notice. See Stonebrook Hillsboro, L.L.C. v. Flavel , 187 Or App 641, 69 P3d 807, rev. den , 335 Or 656, 75 P.3d 899 (2003). The duty of good faith does not function to deny a remedy to a tenant who subjectively believes that their claim has merit, but who otherwise engaged in unfair dealing or had "unclean hands" or a "malicious purpose."
The court found that tenant's testimony about her rental history was not credible and concluded that tenant acted in bad faith when she led landlord "to believe that she always paid her rent." In a letter opinion citing Stonebrook Hillsboro, L.L.C. v. Flavel , 187 Or. App. 641, 69 P.3d 807, rev. den. , 335 Or. 656, 75 P.3d 899 (2003), the court reasoned that "a prerequisite to asserting the rights and remedies under the ORLTA [is that] a party must act in good faith." Because the court found that tenant had acted in bad faith, the court ignored (1) tenant's defense that landlord had improperly rejected tenant's offer of rent prior to terminating the lease and (2) tenant's right to possession because she paid adequate rent into the court even if she did not prevail on her counterclaims.
Defendant was tried as an adult and found guilty of Counts 1, 2, 4, and 5. The trial court merged the guilty verdicts on Counts 1 and 5 and, on appeal, we remanded the case to the trial court to merge the guilty verdicts for aggravated murder, Counts 1 and 2, into one aggravated murder conviction. State v. Walraven , 187 Or.App. 728, 69 P.3d 835, rev. den. , 335 Or. 656, 75 P.3d 899 (2003) (Walraven I ). Defendant appealed again, and we remanded to the trial court to merge the guilty verdict for felony murder (Count 4) with the remaining verdict for aggravated murder. State v. Walraven , 214 Or.App. 645, 167 P.3d 1003 (2007), rev. den. , 344 Or. 280, 180 P.3d 702 (2008) (Walraven II ).
Petitioner was charged with three counts of aggravated murder, ORS 163.095 (murder in an effort to conceal the crime of first-degree robbery (Count 1), murder in an effort to conceal the identity of a perpetrator of the crime of first-degree robbery (Count 2), and personally and intentionally causing the death of the victim while in the course of committing first-degree robbery, i.e., aggravated felony murder (Count 3)), and two counts of murder, ORS 163.115 (felony murder (Count 4) and intentional murder (Count 5)). Petitioner was tried as an adult in July 2000. The jury found petitioner guilty of Counts 1, 2, 4, and 5, but did not reach a verdict on Count 3. The court merged the guilty verdicts on Counts 1 and 5 and, on appeal, we remanded the case so that the trial court would merge the guilty verdicts for aggravated murder, Counts 1 and 2, into one aggravated murder conviction. State v. Walraven, 187 Or App 728, 69 P3d 835, rev den, 335 Or 656 (2003). Petitioner appealed his convictions again, and we remanded to the trial court to merge the guilty verdicts for felony murder (Count 4) with the remaining verdict of aggravated murder.
Petitioner was charged with three counts of aggravated murder, ORS 163.095 (murder in an effort to conceal the crime of first-degree robbery (Count 1), murder in an effort to conceal the identity of a perpetrator of the crime of first-degree robbery (Count 2), and personally and intentionally causing the death of the victim while in the course of committing first-degree robbery, i.e., aggravated felony murder (Count 3)), and two counts of murder, ORS 163.115 (felony murder (Count 4) and intentional murder (Count 5)). Petitioner was tried as an adult in July 2000. The jury found petitioner guilty of Counts 1, 2, 4, and 5, but did not reach a verdict on Count 3. The court merged the guilty verdicts on Counts 1 and 5 and, on appeal, we remanded the case so that the trial court would merge the guilty verdicts for aggravated murder, Counts 1 and 2, into one aggravated murder conviction. State v. Walraven, 187 Or.App. 728, 69 P.3d 835, rev. den., 335 Or. 656, 75 P.3d 899 (2003). Petitioner appealed his convictions again, and we remanded to the trial court to merge the guilty verdicts for felony murder (Count 4) with the remaining verdict of aggravated murder.
As we have previously noted, the Supreme Court has construed the requirements in that subsection as being conjunctive. See State v. Collins, 179 Or.App. 384, 393, 39 P.3d 925 (2002), rev. dismissed,335 Or. 656, 75 P.3d 899 (2003) (construing State v. Hartfield, 290 Or. 583, 624 P.2d 588 (1981)). That is, “the state must prove two elements to establish that a defendant ‘unlawfully entered or remained’ in a building: (1) the defendant entered or remained in a building that is not open to the public and (2) the defendant was not otherwise licensed or privileged to be there at the time.”
Thus, under ORS 164.205(3)(a), the state must prove two elements to establish that a defendant “unlawfully entered or remained” in a building: (1) the defendant entered or remained in a building that is not open to the public and (2) the defendant was not otherwise licensed or privileged to be there at the time. See State v. Collins, 179 Or.App. 384, 393–94, 39 P.3d 925 (2002), rev. dismissed,335 Or. 656, 75 P.3d 899 (2003) (noting that, under Hartfield, the “or” in subsection (3)(a) is conjunctive, and concluding that, as a result, the “defendant's criminal trespass conviction [could not] be predicated on subsection (3)(a) because he did not enter or remain on ‘premises * * * not open to the public’ ” (omission in original)). With that in mind, we consider whether a rational factfinder could conclude that the state met its burden as to Counts 3 and 5.