State v. Carcamo-Tellez

Pursuant to ORS 137.225 the court must grant a motion to set aside certain convictions unless findings by clear and convincing evidence are made that “granting the motion would not be in the best interests of justice.” Unstipulated information asserted by counsel without any other proof is not considered evidence.

Defendant appealed a dismissal of his 2013 motion and affidavit to set aside his robbery in the third degree conviction of 2010 pursuant to ORS 137.225. Defendant argued that the trial court erred because there was no clear and convincing evidence entered into the record to establish that “granting the motion would not be in the best interests of justice.” At trial, the State indicated that there was gang activity surrounding the 2010 conviction but did not offer any other evidence other than the prosecutor’s statements. This Court stated that information from the District Attorney is not evidence, quoting State v. Ordonez-Villanueva which says, “[A] unilateral assertion of counsel is not evidence, because it is not a medium through which a party can present proof of a fact.” Therefore, since no evidence was admitted on record that would establish denial of the motion being in the best interests of justice, the trial court was required to grant Defendant’s motion. Reversed and remanded.