Walls v. Fhuere ( 2024 )

No. 505 July 24, 2024 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
TRACY SCOTT WALLS,
Petitioner-Appellant,
v.
Corey FHUERE,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
20CV22814; A180261
Patricia A. Sullivan, Senior Judge.
Submitted June 14, 2024.
Jedediah Peterson and O’Connor Weber LLC filed the
briefs for appellant. Tracy Scott Walls filed a supplemental
brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
EGAN, J.
Affirmed.
2 Walls v. Fhuere
Cite as 334 Or App 1 (2024) 3
EGAN, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from convictions for one count of
compelling prostitution and one count of promoting prosti-
tution, which were entered after he pleaded no contest to
those crimes. On appeal, he asserts two assignments of
error through counsel and five pro se assignments of error.
Accepting the post-conviction court’s supported
implicit and explicit factual findings and reviewing for legal
error, Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015),
we affirm.
First Counseled Assignment of Error. In the first
assignment of error that petitioner raises through coun-
sel, he asserts that “the post-conviction court erred when
it denied relief on petitioner’s first claim, prosecutorial
misconduct.”
Petitioner’s plea agreement provided, among other
points, “OK to return phones to [petitioner’s] sister.” Peti-
tioner contends that he had two cellphones; that the state
returned only one of them after petitioner’s plea; that the
state destroyed the other; that, therefore, the state breached
the plea agreement provision stating “OK to return phones
to [petitioner’s] sister”; and that he is entitled to post-
conviction relief on that basis. The post-conviction court
denied relief on that claim.
We conclude that the post-conviction did not err
in doing so. “The Due Process Clause of the Fourteenth
Amendment to the United States Constitution gives [a]
defendant an enforceable right in the benefit of his bargain”
with the government. State v. Lynch, 305 Or App 122, 126,
469 P3d 800 (2020). Thus, “when a plea rests in any signifi-
cant degree on a promise or agreement of the prosecutor, so
that it can be said to be part of the inducement or consider-
ation, such a promise must be fulfilled.” Id. (internal quota-
tion marks omitted); see also Puckett v. United States, 556
US 129, 137, 129 S Ct 1423, 173 L Ed 2d 266 (2009) (When “a
defendant agrees to a plea bargain, the Government takes
on certain obligations,” and if they are not met, “the defen-
dant is entitled to seek a remedy.”).
4 Walls v. Fhuere
But “a criminal defendant’s due process right to
enforce a plea agreement extends only to enforcement
of material terms.” Lynch, 305 Or App at 127; see, e.g.,
Campbell v. Smith, 770 F3d 540, 546 (7th Cir 2014) (“[A]
prosecutor’s breach of a plea agreement can be actionable.
However, if the breach is insubstantial, immaterial, tech-
nical, or cured, then the defendant is entitled to no relief.”
(Citation omitted.)).1
“Principles of contract law generally inform the
determination of whether a plea agreement has been per-
formed.” State v. King, 361 Or 646, 648, 398 P3d 336 (2017).
Under those principles, although we are mindful that terms
“that are material to one kind of contract are not necessarily
material to another kind of contract,” generally speaking, “a
breach is material if it goes to the very substance of the con-
tract and defeats the object of the parties entering into the
contract.”2 Pistol Resources, LLC v. McNeely, 312 Or App 627,
637, 496 P3d 28 (2021) (internal quotation marks omitted).
In evaluating materiality, we have considered the circum-
stances set forth in the Restatement (Second) of Contracts
section 241. Pistol Resources, 312 Or App at 638; see also
Venture Properties, Inc. v. Parker, 223 Or App 321, 353-54,
1
See also United States v. Cruz, 95 F4th 106, 112 (3d Cir 2024) (“[N]ot every
breach requires cure. Some are extremely minor, causing no meaningful harm.”);
United States v. Purser, 747 F3d 284, 292 (5th Cir 2014) (“[M]inor breaches do
not count. We * * * once held that a breach of a plea agreement was immaterial.
However, since the breach in this case cannot be characterized as immaterial,
this mitigating doctrine does not apply.”); United States v. Vaval, 404 F3d 144,
155 (2d Cir 2005) (holding that breach of plea agreement does not require a rem-
edy where it has been “previously cured by specific performance” or “the viola-
tion is so minor that it does not cause the defendant to suffer any meaningful
detriment” when considering “what the defendant reasonably understood to be
the terms of the plea agreement, and whether his or her reasonable expectations
have been fulfilled”).
2
The Supreme Court has cautioned, however, that “contract principles that
apply in a commercial setting do not necessarily suffice for an analysis of a plea
agreement, because the rights of criminal defendants not ordinarily found in
contracts between private parties * * * may override contractual principles.” King,
361 Or at 648 (internal quotation marks omitted; omission in King).
But we note that, in this case, petitioner points to the aforementioned stan-
dard for determining whether a contract breach is material in advancing his
arguments on appeal—i.e., “a breach is material if it goes to the very substance of
the contract and defeats the object of the parties entering into the contract”—and
we discern no reason to depart from the well-established standards that gener-
ally apply to our consideration of contracts on the specific facts of this case.
Cite as 334 Or App 1 (2024) 5
195 P3d 470 (2008) (noting the Restatement “criteria” as the
criteria under which we “assess” materiality).
The Restatement section 241 provides:
“In determining whether a failure to render or offer
performance is material, the following circumstances are
significant:
“(a) the extent to which the injured party will be
deprived of the benefit which he reasonably expected;
“(b) the extent to which the injured party can be ade-
quately compensated for the part of that benefit of which he
will be deprived;
“(c) the extent to which the party failing to perform or
to offer to perform will suffer forfeiture;
“(d) the likelihood that the party failing to perform or
to offer to perform will cure his failure, taking account of
all the circumstances including any reasonable assurances;
“(e) the extent to which the behavior of the party fail-
ing to perform or to offer to perform comports with stan-
dards of good faith and fair dealing.”
Restatement § 241.
In this case, petitioner entered into a plea agree-
ment with the state under which he would plead no contest
to one count of compelling prostitution and one count of pro-
moting prostitution and, in exchange, the state would dismiss
51 other charges. Those other charges included 11 counts of
compelling prostitution, one count of promoting prostitution,
four counts of attempted promoting prostitution, five counts of
first-degree rape, five counts of second-degree rape, five counts
of first-degree sodomy, five counts of second-degree sodomy,
five counts of delivering methamphetamine to a minor, eight
counts of first-degree sexual abuse, one count of first-degree
child neglect, and one count of felon in possession of a firearm.
Petitioner ultimately received a sentence of 120 months’ incar-
ceration for the two counts to which he pleaded no contest,
which was the sentence that the state had requested of the
trial judge under the terms of the plea agreement.
According to petitioner’s trial counsel, in negoti-
ating the plea agreement, the amount of “time in prison”
6 Walls v. Fhuere
was petitioner’s “primary concern.” In contrast, the return
of petitioner’s cellphones was not “an essential part of the
negotiation” and was “tacked on later in the process.”
Further, there was evidence in the record at the
post-conviction hearing, which the post-conviction court
expressly found credible, that would have allowed the
post-conviction court to find that, when petitioner pleaded
no contest to one count of compelling prostitution and one
count of promoting prostitution, he was aware that “only
one phone was still operational” and that the other phone
“had been dismantled and was not repairable as part of
a search warrant.” The evidence also would have allowed
the post-conviction court to find that petitioner was aware
that the phone that had been destroyed by the state con-
tained “graphic images of minors” and that the state would
not turn over the entirety of the electronic data from the
phone to petitioner. Finally, the evidence in the record would
have allowed the post-conviction court to find that the state
has offered to turn over “contacts, photos, etc.,” from the
destroyed phone (apart from the aforementioned “graphic
images of minors”), as well as reimburse petitioner for the
cost of the phone that was destroyed.
Considering the factors set forth in the Restatement
and the facts of this case—including that petitioner was
aware that one phone had been destroyed at the time that
he pleaded guilty; that the state offered to provide petitioner
access to the portion of data from the destroyed phone which
it is not illegal to possess; that the state offered to compen-
sate petitioner for the cost of the destroyed phone; and that
the amount of “time in prison” was petitioner’s “primary
concern” in negotiating the plea agreement—we conclude
that any breach by the state was not material. Any breach
did not go “to the very substance of the contract and defeat[ ]
the object of the parties entering into the contract.” Pistol
Resources, 612 Or App at 637.
Second Counseled Assignment of Error. In the sec-
ond assignment of error that petitioner raises through coun-
sel, he asserts that “the post-conviction court erred when it
denied relief on petitioner’s fourth claim, ineffective assis-
tance of trial counsel.” Specifically, petitioner contends that
Cite as 334 Or App 1 (2024) 7
trial counsel was “ineffective and inadequate for failing to
advise petitioner that the jury would have to reach a unani-
mous verdict and, if it did not, petitioner could challenge the
constitutionality of the conviction on direct appeal.”
Petitioner’s argument is foreclosed by Smith v.
Kelly, 318 Or App 567, 508 P3d 77 (2022), rev den, 370 Or 822(2023) (counsel was not constitutionally deficient for failing
to advise his client that Apodaca v. Oregon, 406 US 404,
92 S Ct 1628, 32 L Ed 2d 184 (1972), could be overruled).
And, in any event, the post-conviction court found petitioner
not to be credible when he asserted that he would not have
pleaded no contest if he had received adequate assistance
of counsel. Cox v. Howton, 268 Or App 840, 842, 343 P3d
677 (2015) (“[W]e have consistently required post-conviction
petitioners who have pleaded guilty to an underlying crime
to prove by a preponderance of the evidence that they would
not have pleaded guilty had they received adequate assis-
tance of counsel.”).
First Through Third Pro Se Assignments of Error.
In his first through third pro se assignments of error, we
understand petitioner to challenge the post-conviction
court’s denial of his motion pursuant to Church v. Gladden,
244 Or 308, 417 P2d 993 (1966), as untimely. That motion
was filed on June 13, 2022, just three days before petitioner’s
post-conviction trial, which took place on June 16, 2022.
Petitioner had previously filed a motion on February 22,
2021, but then withdrew that motion because counsel had
“complied with [petitioner’s] requests to do everything that
[was] included” in the February 22 Church motion, includ-
ing “add[ing] the claims that [petitioner] requested.”
On this record, we discern no abuse of discretion in
the denial of petitioner’s June 13, 2022, Church motion. Cf.
Inman v. Bowser, 308 Or App 458, 459, 480 P3d 335, rev den,
368 Or 347 (2021) (“Absent * * * a deadline [for filing Church
motions], there is no basis to conclude that a Church motion
is untimely, at least where, as here, the motion is filed well
before the start of the post-conviction trial and the record
contains no affirmative evidence about the attorney-client
relationship or petitioner’s individual circumstances that
8 Walls v. Fhuere
would suggest that petitioner had been dilatory in filing the
motion.” (Emphasis added.)).
Fourth Pro Se Assignment of Error. In his fourth
pro se assignment of error, petitioner contends that the trial
court erred when it found that petitioner raised the issue of
the purportedly breached plea agreement “before the Trial
Court in a motion to set aside the plea, which was denied.”
Petitioner acknowledges that he filed a motion to set aside
his plea in the criminal trial court, and that that motion
was pending during his post-conviction proceeding, but he
contends that the post-conviction court was wrong to include
a finding that the criminal trial court had denied the motion
to set aside his plea.
The difficulty with petitioner’s argument is that,
as we understand the post-conviction court’s judgment, the
question whether petitioner’s motion to set aside the plea in
the criminal trial court had already been denied or, alter-
natively, was currently pending, had no bearing on the post-
conviction court’s ruling that petitioner was not entitled to
relief. Consequently, petitioner’s fourth pro se assignment of
error does not identify an error requiring reversal.
Petitioner’s Fifth Pro Se Assignment of Error. In peti-
tioner’s fifth pro se assignment of error, he argues that the
post-conviction judgment fails to “meet the requirement of
ORS 138.640(1) that, ‘The judgment must clearly state the
grounds on which the cause was determined, and whether a
state or federal question was decided.’ ” Petitioner also con-
tends that the judgment does not “make the legal bases for
denial of relief apparent” as required under Datt v. Hill, 347
Or 672, 685, 227 P3d 714 (2010). In advancing those two
arguments, petitioner points to the post-conviction court’s
acknowledgement in the judgment that “[t]his matter
involves Federal and/or State Constitutional Issues.”
Petitioner’s fifth pro se assignment of error argu-
ment fails, because it disregards the other portions of the
judgment on appeal, which do meet the requirements of
ORS 138.640(1) as interpreted in Datt. The judgment sets
out each claim and makes separate rulings as to each claim,
and it explains the reasons for the post-conviction court’s
Cite as 334 Or App 1 (2024) 9
denial of each claim. Datt, 347 Or at 685 (“We conclude
that, to be clear, and to enable federal courts to determine
habeas corpus jurisdiction, a judgment denying claims for
post-conviction relief must, at a minimum: (1) identify the
claims for relief that the court considered and make sepa-
rate rulings on each claim; (2) declare, with regard to each
claim, whether the denial is based on a petitioner’s failure
to utilize or follow available state procedures or a failure
to establish the merits of the claim; and (3) make the legal
bases for denial of relief apparent.”).
Affirmed.