State v. Couch

A defendant filing a motion seeking DNA testing and the appointment of counsel under ORS 138.690 (2011) and 138.694 (2011) must include an affidavit containing a statement that he is innocent, identifying the specific evidence to be tested, and identifying a theory of defense that DNA testing would support, and additionally make a prima facie showing the testing would establish actual innocence.

Defendant appealed the denial of his motion seeking DNA testing and the appointment of counsel (ORS 138.690 (2011) and 138.694 (2011)) following his guilty plea to kidnapping in the first degree, unlawful sexual penetration in the first degree, rape in the first degree, and sexual abuse in the first degree. The motion was denied due to Defendant’s ineligibility for post-conviction testing under ORS 138.690(1). On appeal, Defendant argued that because he is an incarcerated person in a Department of Corrections institution as a result of conviction for a person felony his motion should have been granted. A defendant filing a motion for DNA testing must also (1) file an affidavit containing a statement that he is innocent, identifying the specific evidence to be tested, and identifying a theory of defense that DNA testing would support (ORS 138.692(1)(a)) and (2) make a prima facie showing the testing would establish actual innocence (ORS 138.692(1)(b)). Because Defendant did not meet these requirements, the motion was properly dismissed. Affirmed.