Multnomah County District Attorney Mike Schmidt and his Justice Integrity Unit are scheduled to urge a judge on Monday to either lower or set aside charges for eight individuals, some of whom have been convicted of robbery, violent assault, or murder, just days before he leaves office.
Senate Bill 819, which was passed by state lawmakers in 2021, permits a district attorney and a convicted individual to jointly request that a judge reconsider a conviction or lower a jail term. A court has the authority to shorten a person’s sentence, drop a conviction entirely, or convert a felony to a misdemeanor.
Copies of some of the combined petitions were obtained by The Oregonian/OregonLive. The court docket indicates that Circuit Judge Melvin Oden-Orr will hear the petitions one after the other on Monday afternoon.
Two assault victims in one instance have stated that they are adamantly against their attacker’s convictions being changed. In another example, a guy who was found guilty of many burglaries and felony murder claims his 35-year sentence is too long and wants to be released next month.
Schmidt’s detractors have accused him of trying to sneak these reforms through the holidays, just days before his tenure as district attorney comes to an end, because the joint petitions were not submitted in court as of Saturday, two days before the hearings are set.
Nathan Vasquez, the district attorney-elect for Multnomah County, who takes office on January 6, said these all seem like last-minute giveaways. They are being given some sort of reprieve despite being incredibly violent people who have done heinous atrocities.
According to Kevin Neely, executive director of the recently established nonprofit Oregon Criminal Justice Project, such actions should be carried out during the day rather than at the eleventh hour and fifty-nine minute of a person’s term. Retired Oregon prosecutors created the nonprofit.
According to Schmidt, the petitions scheduled for review on Monday are identical to those that his office has backed and scheduled for hearing on a monthly or biweekly basis over the previous 12 months. He stated that his office’s Justice Integrity Unit strives for justice and stands for more than just convictions.
We follow a well-established and comprehensive procedure that incorporates feedback from our community advisory board. He stated via email that each of these petitions has undergone a rigorous review procedure spanning several months. We have been doing this identical task during my semester.
They offer a chance to rectify past excessive sentences and let people move past their past criminal records, according to Aliza B. Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School and a law professor who helped draft the bill that permits the petitions and is responsible for many of the petitions that will be heard on Monday.
Among them is Shane Ebberts, who was 17 years old in 1996 when he was found guilty of first-degree assault and second-degree assault for using a mallet handle to beat a student at Mount Hood Community College. He was given a seven-and-a-half-year jail sentence. He was one of the first people charged under Measure 11, which required minimum prison terms without the possibility of release and permitted juveniles 15 and older to be tried in adult court for specific offenses. He was 16 years old at the time of the crime.
After a brief altercation on an empty field at the community college on May 5, 1995, Ebberts and two pals attacked David Clarke, 25, and Evan Gardner, 22. Brian Lawler, Ebberts’ co-defendant, struck Clarke’s head with a baseball bat. Ebberts struck Gardner’s head with the handle of a mallet.
The 46-year-old Ebberts has already completed his term. However, a joint petition from his defense attorney and the district attorney’s office requests that the judge grant him permission to enter a new guilty plea to a lower charge of attempted second-degree assault in lieu of his previous guilty pleas to the two assault counts.
Although both victims in the case are against overturning the more serious sentences for first-degree and second-degree assault, the petition contends that the convictions no longer further the purposes of justice.
The victims were randomly attacked while examining a section of the college campus for a potential frisbee golf course, according to Chuck French, a retired Multnomah County prosecutor who was working on Ebberts’ case at the time.
French claimed that by changing Ebbert’s conviction to a Class C felony—an attempted second-degree assault—he would be able to request that the offense be removed from his record in the future. He maintained that Ebberts’ age at the time of his offense had already been taken into account by the judge who sentenced him.
According to French, this was an extremely distressing event for the victims.
He claimed that Ebberts and his fellow defendants were using baseball bats to strike innocent bystanders in East County for fun.
The petition notes that Clarke, who suffered a fracture to his skull and was first put in a medically induced coma, is adamantly opposed to the assault convictions being lifted, believes that Ebberts poses a threat to society, and claims that Ebberts never expressed regret for the attack.
According to the petition, he doesn’t want updates since they make him crazy.
When Ebbert’s previous defense attorney claimed the sentence constituted cruel and unusual punishment, he lost an appeal. Ebberts was 16 at the time of the offense, a first-time offender with no violent offenses, treatable, and not the primary culprit, according to the defense attorney.
In a November 2022 motion for reconsideration, Ebberts’ current defense attorney, John E. Gutbezahl, sought that his client’s conviction be changed to an attempted assault so that Ebberts could thereafter request that the lower charge be dropped.
Ebberts sent a letter to the district attorney’s office saying, “I apologize for my actions and accept full responsibility for them.” Although I am now a responsible, mature adult, my actions as a youth are not justified or excused.
Gutbezahl maintained that the modification was justified due to Ebbert’s age at the time of the offense, his excellent behavior while incarcerated, his successful completion of his post-prison supervision, and his present career as a general contractor. After being released from jail in 2003, Ebberts married a year later and is currently the owner of his own remodeling business.
Since his release, he has lived a model life, raising a family, giving back to the community, and succeeding as a businessman, according to Gutbezahl.
One of Ebbert’s victims, Gardner, told The Oregonian/OregonLive on Saturday that he was notified of the hearing on Monday by voicemail from the district attorney’s office on December 23. He declared that he is opposed to his attackers’ charges being dropped, their conviction being overturned, or their criminal record being expunged. He claimed not to have seen the combined petition’s details.
Gardner, now 52, responded, “Attempted my (expletive)!” when asked if he was in favor of his attackers’ charge being dropped from assault to attempted second-degree assault. He claimed that the attack was unprovoked and that he could still hear the baseball bat cracking into his friend Clarke’s skull just before Gardner was hit.
Together, they caused irreversible damage that will always affect us, our families, and our extended relatives, Gardner said. It broke my sense of security.
Frank F. Swopes Jr. is another petitioner. He was found guilty in December 1993 of murder, two counts of first-degree robbery, three charges of first-degree burglary, kidnapping, using a vehicle without permission, and evading police.
He was found guilty of asphyxiating 75-year-old Jean L. Stevenson to death during a home invasion robbery at her residence in Northeast Portland. She lost $8 and her wedding band to the burglars. At sentence, Swopes claimed he had never touched Stevenson. According to the evidence in the prosecution, she died after his co-defendant shoved her to the ground after Swopes told her to be quiet.
According to court documents, Swopes committed another burglary a week after Stevenson’s passing, tying a 76-year-old woman to her bed frame and rifling through her home for ninety minutes. In that burglary, he terrorized the woman until she gave him her ATM code, then bound her hands and feet, touched her sexually and ripped her robe off, at which point she believed he either urinated or ejaculated on her, the joint petition said. He tied her to furniture before he fled, the document said.
Swopes, then 30, was sentenced to 35 years and 10 months in prison, including 25 years for felony murder, after a stipulated facts trial. Swopes committed the burglaries and robberies to finance a cocaine habit, according to court records.
Kaplan, the law professor who directs Lewis and Clark Law School s Criminal Justice Reform Clinic, argues that Swopes, now 62, served 32 years of an excessive 35-year prison term, though he did not intend, nor did he cause the victim s death. His co-defendant, she said, caused the death but in a plea deal, got 17 years and was afforded early release.
He has made excellent use of his 32 years in prison. He is an ideal candidate for SB 819, which provides an opportunity to resentence him and let him finally go home to his family, Kaplan said.
In Swopes case, the victims have passed away, according to the petition.
Another petition involves Allen Wayne Howard, 57, who also remains in custody but is seeking to have his sentence reduced.
Howard robbed Roosters Pub on Sept. 20, 2001, with another man and fired a gun at the cement floor, ordered the nine people inside to the floor and threatened to shoot them. Howard and the other man demanded money from the cash register and ordered patrons to empty their pockets.
He was convicted by a jury in 2002 of nine counts of first-degree robbery, nine counts of second-degree robbery, nine counts of unlawful use of a weapon and being a felon with a gun. He was sentenced to 41 years in prison. As of September, he has served 23 years, with 18 years left. Howard s application for review contends that a single robbery conviction today with no injuries but use of a gun would result in a lesser sentence of seven to 10 years. It says he was high on methamphetamine at the time of the robbery. He wants to be released to live in a trailer on his sister and his brother-in-law s property in Wasco County.
Schmidt and Howard agree the sentence is excessive and said Howard has a minimal disciplinary record and would be on supervision if released. The district attorney s office attempted to contact each victim but wasn t able to reach all, and at least two of the victims were opposed to any changes in his sentence. One man asked to review Howard s application, which was sent to him in October, but the Dec. 20 joint petition wasn t shared, according to court records.
Other joint petitions set to be heard are for:
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Tanya Stoudamire, now 52, who was convicted in 2006 of child neglect and put on two years of probation. She s seeking to have her two child neglect convictions erased, according to court records. She had pleaded guilty to allowing her children to reside on premises where drugs were sold, according to court papers. Charges of cocaine possession and delivery were dismissed.
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Aaron D. Kent, 42, seeking to set aside his 2002 conviction for delivery of a controlled substance within 1000 feet of a school.
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Dashia Fontleroy, now 42, seeking to set aside her 2002 conviction for child neglect.
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Jonathan Alexander Craig, now 37, who is seeking to set aside his delivery of heroin conviction in 2017.
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Nicholas Thornton, now 42, who was convicted of first-degree burglary in 2011. He s seeking to set aside the conviction.
Arrests or convictions for non-person Class B felonies, most Class C felonies, or misdemeanors or violations that are not sex crimes or traffic convictions can be expunged. Some of the petitions pending seek to reduce convictions to lesser charges that then can be expunged.
Vasquez, Neely and French each said they had serious doubts that the victims in each of the cases scheduled for a Monday hearing had reviewed copies of the joint petitions, considering the petitions for Swopes and Howard are dated Dec. 20, and the joint petition for Ebberts is dated Dec. 23.
Under state law, the district attorney shall use all reasonable efforts to inform a victim associated with each conviction that a petition has been filed and provide a copy of the petition to the victim, as soon as practicable and no later than 30 days before any hearing on the petition.
Monday s hearings are set to start at 1 p.m. and continue through 4:30 p.m.
— Maxine Bernstein writes about criminal justice and federal courts. Reach her at 503-221-8212, [email protected], follow her on X@maxoregonian, or onLinkedIn.
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