Perkins v. Fhuere ( 2024 )

290 May 1, 2024 No. 277
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JORDON PERKINS,
Petitioner-Appellant,
v.
Corey FHUERE,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
18CV47949; A178824
Patricia A. Sullivan, Senior Judge.
Submitted October 31, 2023.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant. Jordon Perkins filed the supplemental
brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Tookey, Judge, and
Kamins, Judge.
LAGESEN, C. J.
Reversed with respect to Claim 7 and remanded for entry
of judgment granting post-conviction relief on that claim;
otherwise affirmed.
Cite as 332 Or App 290 (2024) 291
292 Perkins v. Fhuere
LAGESEN, C. J.
Petitioner was convicted by a jury of two counts of
first-degree rape (Counts 2 and 3), two counts of first-degree
sodomy (Counts 4 and 5), one count of first-degree unlawful
sexual penetration (Count 6), one count of first-degree sex-
ual abuse (Count 8), and one count of third-degree assault
(Count 10). In this post-conviction proceeding, he appeals a
judgment denying relief from his convictions and sentences
on those counts.
For the reasons that follow, we conclude that the
post-conviction court erred in denying relief on petitioner’s
claim that trial counsel was constitutionally inadequate for
not objecting to the trial court’s imposition of enhanced sen-
tences under ORS 137.690 on Counts 3, 4, 5, and 6, based on
judicially-found facts, instead of jury-found facts as required
under Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348,
147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US
296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and, further,
that petitioner is entitled to a new sentencing proceeding
pertaining to those counts. We otherwise affirm.
I. LEGAL STANDARDS AND STANDARD OF REVIEW
Petitioner seeks relief from his convictions and sen-
tence on the ground that his trial counsel provided inade-
quate and ineffective assistance, in violation of his rights
under Article I, section 11, of the Oregon Constitution, and
the Sixth and Fourteenth Amendments to the United States
Constitution.
To prevail on a claim of inadequate and ineffective
assistance of counsel under the state constitution, a post-
conviction petitioner must prove a two-prong test: that trial
counsel “failed to exercise reasonable professional skill and
judgment,” and that counsel’s failure “had a tendency to
affect” the result of the trial. Johnson v. Premo, 361 Or 688,
699, 399 P3d 431 (2017). To satisfy the first prong, a petitioner
must prove that counsel’s decision “ ‘reflects an absence of
reasonable professional skill and judgment’ ” which turns on
“the facts known to counsel at the time that [counsel] made
[the] decision.” Davis v. Kelly, 303 Or App 253, 262, 461 P3d
1043 (2020) (quoting Cartrette v. Nooth, 284 Or App 834,
Cite as 332 Or App 290 (2024) 293
841, 395 P3d 627 (2017) (brackets in Davis)). To satisfy the
second prong, a petitioner must show that counsel’s inad-
equate performance had a tendency to affect the outcome
of the trial. Green v. Franke, 357 Or 301, 322, 350 P3d 188
(2015).
A functionally equivalent two-prong standard gov-
erns claims of ineffective assistance of counsel under the
Sixth Amendment to the United States Constitution. Davis,
303 Or App at 262. Under the federal standard, a petitioner
must prove that “trial counsel’s performance ‘fell below an
objective standard of reasonableness,’ ” and that “there was
a ‘reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.’ ” Id. at 262-63 (quoting Strickland v. Washington,
466 US 668, 694, 103 S Ct 2052, 80 L Ed 2d 674 (1984)).
On review of a post-conviction court’s judgment
resolving a petition for post-conviction relief, we accept the
post-conviction court’s supported implicit and explicit fac-
tual findings and we review conclusions of law for legal error.
Green, 357 Or at 312. If the post-conviction court failed to
make findings of fact on all issues, and there is evidence
from which such facts could be decided more than one way,
we presume that the post-conviction court made any neces-
sary factual findings in a manner consistent with its conclu-
sions of law. Id.; Pereida-Alba v. Coursey, 356 Or 564, 670-
71, 342 P3d 70 (2015) (explaining that the presumption that
the post-conviction court decided facts consistently with its
legal conclusion applies only to factual findings necessary to
that legal conclusion).
II. BACKGROUND
With those standards in mind, we provide an over-
view of the facts necessary to understand the issues before
us in this appeal, supplementing those facts as necessary in
addressing petitioner’s individual assignments of error.
As noted, petitioner was convicted of seven sex
offenses. Those convictions arose from an incident that
occurred after petitioner and his codefendant, Jacobs,
picked the victim up from a friend’s house in a vehicle and
then parked in a secluded area to smoke and drink in the
294 Perkins v. Fhuere
car. After the victim declined petitioner’s sexual advances,
petitioner, with the assistance of Jacobs, sexually assaulted
her in multiple different ways. For that conduct, the jury
found petitioner guilty of two counts of first-degree rape,
two counts of first-degree sodomy, one count of first-degree
unlawful sexual penetration, one count of first-degree sex-
ual abuse, and one count of third-degree assault. The trial
court had instructed the jury that at least 10 jurors must
agree on the verdict. No party requested a jury poll, and the
record does not show the jury’s vote on any of the convictions.
At sentencing, the trial court imposed the 300-
month (25-year) mandatory minimum sentence under ORS
137.690 on one count of first-degree rape, both counts of first-
degree sodomy, and on the conviction for first-degree sexual
penetration. The court did so based on its own factual find-
ing that one of the rape counts involved a “separate criminal
episode” from the other counts and, therefore, counted as a
“previous conviction of a major felony sex crime” within the
meaning of ORS 137.690 so as to require the imposition of
the mandatory minimums on the other counts under that
statute. Petitioner’s trial counsel did not object to the trial
court making the “separate criminal episode” finding on its
own, or argue to the court that, under Apprendi, 530 US
466, the Sixth and Fourteenth Amendments required a jury,
not a judge, to find that the predicate rape offense involved
a separate criminal episode so as to permit the imposition
of the 25-year mandatory minimum sentences under ORS
137.690. The trial court structured petitioner’s sentences so
they were partially concurrent and partially consecutive,
for a total of 575 months’ incarceration. Petitioner appealed,
we affirmed without opinion, and the Supreme Court denied
review. State v. Perkins, 289 Or App 378, 412 P3d 1211
(2017), rev den, 362 Or 699 (2018).
Petitioner then initiated the present post-conviction
proceeding. He asserted 11 claims for relief. Relevant to
the issues on appeal, he alleged that his trial counsel was
inadequate and ineffective by failing to object to the state’s
admission of Jacobs’ testimony (Claim 1), failing to intro-
duce evidence of petitioner’s previous sexual encounters
with the victim (Claim 3), failing to object to the 575-month
Cite as 332 Or App 290 (2024) 295
sentence as disproportionate or cruel and unusual (Claim 6),
failing to object to the application of ORS 137.690(a) sen-
tence enhancements to the major felony sex crimes on
the ground that the jury had not found that the predicate
rape conviction arose out of a separate criminal episode
(Claim 7), and failing to object to the nonunanimous jury
verdict instruction and failing to poll the jury (Claims 8-10).
The post-conviction court denied relief. This appeal followed.
III. ANALYSIS
On appeal, in a brief submitted by counsel and in
a pro se supplemental brief, petitioner assigns error to the
post-conviction court’s denial of relief on each of the above
claims. We reverse on the denial of relief on his Apprendi-
based sentencing claim (Claim 7). We conclude that reason-
able counsel would have objected to the imposition of the
enhanced sentence under ORS 137.690(a), and that counsel’s
failure to object prejudiced petitioner. We otherwise affirm
the post-conviction court’s judgment.
A. First Assignment of Error: Failure to Object to Codefen-
dant’s Testimony or Request Limiting Instruction
Petitioner first assigns error to the post-conviction
court’s denial of relief on his claim that his trial counsel was
inadequate and ineffective for not objecting to the admission
of Jacobs’ testimony about his guilty plea and petitioner’s
criminal conduct or requesting a limiting instruction about
the use of that evidence. Trial counsel explained that her
decision not to object to Jacobs’ testimony was meant to call
into question his credibility by allowing him to testify about
his arrangement with the prosecution, and therefore show
his self-interest in testifying. The post-conviction court
credited trial counsel’s explanation of the strategic choices
that she made in handling Jacob’s testimony and concluded
that counsel’s decision-making was reasonable. It therefore
denied the claim on that basis. Accepting, as we must, the
post-conviction court’s credibility determinations, we agree
with the post-conviction court that trial counsel’s decisions
do not reflect an absence or suspension of professional skill
and judgment. Newmann v. Highberger, 330 Or App 229,
234-35, 543 P3d 172 (2024) (citing State v. Johnson, 335 Or
296 Perkins v. Fhuere
511, 523, 73 P3d 282 (2003)). The post-conviction court did
not err in denying relief on this claim.
B. Second Assignment of Error: Failure to Introduce
Evidence of Prior Sexual Encounters Between Petitioner
and the Victim
Petitioner next assigns error to the post-conviction
court’s denial of relief on his claim that his trial counsel was
inadequate and ineffective for failing to introduce evidence of
prior consensual sexual encounters between petitioner and
the victim. The post-conviction court denied relief on the claim
because it credited counsel’s explanation as to why she chose
not to introduce that evidence, and then determined that
counsel’s decision-making was reasonable. Accepting again
the post-conviction court’s credibility findings, Newmann,
330 Or at 234-35, we agree with the post-conviction court
that counsel’s handling of the issue reflects reasonable pro-
fessional skill and judgment. The post-conviction court there-
fore did not err in denying relief on this claim.
C. Third Assignment of Error: Failure to Challenge
Petitioner’s 575-Month Sentence on the Ground that it
was Unconstitutionally Disproportionate or Cruel and
Unusual
In his third assignment of error, petitioner chal-
lenges the post-conviction court’s denial of relief on his claim
that trial counsel was inadequate and ineffective for fail-
ing to object to the 575-month sentence as disproportionate
and cruel and unusual punishment, in violation of Article I,
section 16, of the Oregon Constitution, and the Eighth
Amendment to the United States Constitution. We do not
reach this assignment of error, because our resolution of peti-
tioner’s fourth assignment of error will require resentencing,
which may result in the imposition of a different sentence.
D. Fourth Assignment of Error: Failure to Challenge the
Imposition of the ORS 137.690 Sentences on Counts 3
through 6
In his fourth assignment of error, petitioner assigns
error to the post-conviction court’s denial of relief on his
claim that trial counsel was inadequate and ineffective for
Cite as 332 Or App 290 (2024) 297
failing to object to the imposition of the 300-month sen-
tences under ORS 137.7901 on Counts 3 through 6. Invoking
Apprendi, petitioner alleges that reasonable counsel would
have “rais[ed] and preserv[ed] an argument that ORS
137.690 required a jury to find that the prior convictions
arose out of separate criminal episodes.” Petitioner further
contends that, had counsel raised the objection, the sentenc-
ing court “would not have imposed the enhanced sentences
on petitioner for Counts 3, 4, 5 and 6 or would have commit-
ted reversible error by doing so.”
In support of that argument, petitioner points to our
decision in State v. Thornsberry, 315 Or App 287, 288, 294,
501 P3d 1 (2021), in which we held that, under Apprendi, a
sentence may not be enhanced under ORS 137.690 based on
“a conviction in the same sentencing proceeding” absent a
jury finding that the conviction involved a “separate criminal
episode.” ORS 137.690(c); ORS 131.505(4). Notwithstanding
Thornsberry, the post-conviction court denied relief based on
its determination that: “In 2015, when Petitioner was tried
and sentenced, the law was not clear whether the Court or
the jury had to find the enhancements. The decision clari-
fying this was six years in the future. Trial counsel was not
ineffective for failing to object to finding by the Court.” For
the reasons that follow, we conclude otherwise.
We previously have delineated the scope of a crim-
inal defense counsel’s obligation under Article I, section 11,
to advance legal arguments at sentencing. Gordon v. Hall,
232 Or App 174, 180-88, 221 P3d 763 (2009). That obligation
requires counsel “to identify and advocate for issues that
may have benefited petitioner at sentencing in light of the
nature and complexity of his case.” Id. at 181. Said another
way,
1
ORS 137.690 states, in part:
“a. Any person who is convicted of a major felony sex crime, who has one
(or more) previous conviction of a major felony sex crime, shall be imprisoned
for a mandatory minimum term of 25 years.
“* * * * *
“c. Previous conviction’ includes * * * a conviction in the same sentencing
proceeding if the conviction is for a separate criminal episode as defined in
ORS 131.505.”
298 Perkins v. Fhuere
“Adequate performance includes identifying and advocat-
ing for issues that may benefit the defendant at sentenc-
ing. If a lawyer exercising reasonable professional skill and
judgment would have recognized such an issue and would
have concluded under the circumstances that the benefits
of raising it outweighed the risks of doing so, failing to
raise the issue may constitute inadequate assistance.”
Buffa v. Belleque, 214 Or App 39, 42, 162 P3d 376, rev den,
173 P3d 1016 (2007).
In this case, counsel exercising reasonable profes-
sional skill and judgment would recognize that the applica-
tion of ORS 137.690 would be a critical issue at petitioner’s
sentencing and, further, would recognize that the applica-
tion of the statute would require a factual determination
that at least one of the rape convictions, sodomy convictions,
or the unlawful sexual penetration conviction involved a
separate criminal episode from the other convictions subject
to sentencing under ORS 137.690. Petitioner’s counsel, in
fact, recognized as much. In the sentencing memorandum,
she argued:
“ORS 137.690 is inapplicable to this case. Its application
is predicated on past sexual crimes. It allows (and requires)
the 25-year mandatory minimum for sentences in the same
proceeding if the convictions arose from separate criminal
episodes. It would be inappropriate to find that each sexual
crime committed by Defendant in this case, which occurred
in the same vehicle, at the same location, against the same
victim, within one hour, with no evidence of pause between
events, were all separate criminal episodes which would
authorize the Court to sentence Defendant to 25 years for
each conviction of a sexual crime excluding the first.”
Having recognized that application of ORS 137.690
would require a factual determination that some or all of the
offenses at issue arose from separate criminal episodes—
a factual determination that had not been made by the
jury—counsel exercising reasonable professional skill and
judgment would also have objected to the imposition of sen-
tences under ORS 137.690 as contravening the principles
of Apprendi. A lawyer exercising reasonable professional
skill would understand the key principles announced in
Apprendi and, later, in Blakely, that (1) other than the fact
Cite as 332 Or App 290 (2024) 299
of a prior conviction, a jury must find—beyond a reasonable
doubt—any fact that increases a crime’s penalty beyond the
prescribed statutory maximum; Apprendi, 530 US at 490;
and (2) the “ ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by
the defendant.” Blakely, 542 US at 303 (emphasis omitted).
A lawyer exercising reasonable professional skill
and judgment would also recognize the potential application
of those principles to a case in which the state was seeking
to impose a sentence under ORS 137.690 based on a con-
viction in the same sentencing proceeding. In such circum-
stances, a sentence under ORS 137.690 operates to triple the
otherwise-applicable sentence of 100 months to 300 months
based on a factual determination that the predicate offense
involved a separate criminal episode—a factual determina-
tion that, in this instance, the jury had not made.
Finally, a lawyer exercising reasonable professional
skill and judgment would have concluded that the benefits
of raising the issue outweighed the risks. The benefits to
petitioner—avoiding having his sentences increased by 200
months—were obvious and, as noted, counsel recognized
the benefits of challenging the application of ORS 137.690
by, in fact, arguing that it could not apply. The risks were,
at most, minimal: that the sentencing court would reject the
argument and engage in judicial factfinding.
For those reasons, we conclude that counsel’s failure
to raise an Apprendi-based objection to the application of
ORS 137.690 at sentencing was not the product of reasonable
professional skill and judgment. In so doing, we reject the
superintendent’s argument that Smith v. Kelly, 318 Or App
567, 508 P3d 77 (2022), rev den, 370 Or 822 (2023), com-
mands a different result. In Smith, we held that counsel’s
failure to object to Oregon’s nonunanimous jury instruction
prior to the Supreme Court’s decision in Ramos v. Louisiana,
590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), was
reasonable. We reasoned that prior to Ramos, “controlling
United States Supreme Court precedent established that
the Sixth and Fourteenth Amendments did not demand
unanimous jury verdicts in criminal cases prosecuted in the
300 Perkins v. Fhuere
state courts.” Smith, 318 Or App at 569. And we concluded
that “the obligation to exercise reasonable professional skill
and judgment—under either [the state or federal] constitu-
tion—does not encompass an obligation to augur an about-
face by the United States Supreme Court.” Id.
The superintendent characterizes counsel’s perfor-
mance in this case as a failure to anticipate Thornsberry,
akin to the failure to anticipate Ramos, such that counsel
cannot be faulted for failing to raise an Apprendi objection
at petitioner’s sentencing, just as counsel in Smith could
not be faulted for not objecting to the nonunanimous jury
instruction. Unlike Ramos, Thornsberry did not break new
legal ground or change course from prior precedent. Rather,
Thornsberry involved a relatively straightforward applica-
tion of the principles of Apprendi and Blakely to the ORS
137.690 sentencing context, something that reasonable
counsel could, and should, have recognized even without a
case addressing that particular sentencing statute.
We next turn to the question of prejudice. Under
Gordon, that inquiry turns, in the main, on whether peti-
tioner’s Apprendi-based argument would have been success-
ful. For the reasons explained in Thornsberry, it would have
been—if not in the trial court, then in our court, as was
the case in Thornsberry itself. Thornsberry, 315 Or App at
288 (noting that the defendant’s lawyer had objected to the
imposition of a sentence under ORS 137.690 because the
jury had not found that the predicate offense involved a sep-
arate criminal episode). And prevailing on that argument,
in turn, could have resulted in a shorter sentence for defen-
dant. Absent the necessary jury finding, the trial court could
not have sentenced petitioner under ORS 137.690. And, even
if the state had been in a position to empanel a sentencing
jury to correct the problem (we express no opinion on the pro-
priety of that), the superintendent expressly acknowledges
that “if the issue had been submitted to the jurors, they may
have reached a different decision” than the trial court as to
whether the offenses in question involved separate criminal
episodes. We agree with that acknowledgment.
Accordingly, we reverse the denial of relief on peti-
tioner’s Claim 7 and remand for entry of judgment granting
Cite as 332 Or App 290 (2024) 301
relief on that claim “and such other relief as may be proper
and just.” ORS 138.520.
E. Fifth Through Eighth Assignments of Error and Pro Se
Supplemental Assignments of Error: Failure to Object
to the Nonunanimous Jury Instruction, Request that
the Jury be Polled and Standalone Claim that the
Nonunanimous Jury Instruction Violated Petitioner’s
Federal Rights
Petitioner was tried in 2015, before the Supreme
Court decided Ramos. Consistent with the law at the time,
the jury was instructed that it could convict petitioner by a
10-2 verdict. Petitioner’s lawyer did not request a jury poll.
In his remaining assignments of error, petitioner assigns
error to the denial of relief on his claim that trial coun-
sel was inadequate and ineffective for not objecting to the
nonunanimous jury instruction and for not requesting a
jury poll. Petitioner also challenges the denial of relief on
his standalone claim that the trial court failed to instruct
the jury that it needed to convict by a unanimous verdict.
On the facts of this case, those arguments fail under Smith
(trial counsel not deficient in 2015 for not objecting to trial
court’s instruction that jury verdict need not be unanimous),
Aaron v. Kelly, 325 Or App 262, 528 P3d 1215, rev den, 317
Or 333 (2023) (trial counsel not deficient for not requesting a
jury poll before Ramos was decided), and Mandell v. Miller,
326 Or App 807, 533 P3d 815, rev den, 371 Or 476 (2023)
(absent a jury poll, an appellate court cannot determine
under Ramos whether a trial court erred in its jury una-
nimity instruction).
IV. CONCLUSION
For the foregoing reasons, we reverse the post-
conviction court’s judgment denying relief on Claim 7 and
remand for entry of judgment granting relief on that claim.
We otherwise affirm.
Reversed with respect to Claim 7 and remanded
for entry of judgment granting post-conviction relief on that
claim; otherwise affirmed.