Kurtz v. Cain ( 2021 )

518
Submitted April 7, 2020; judgment on Claim 2(a) reversed and remanded,
otherwise affirmed November 3, 2021
JOSEPH WAYNE KURTZ,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
17CV11433; A168758
500 P3d 685
Petitioner appeals a judgment denying him post-conviction relief, contending
that the post-conviction court erred in concluding that he had failed to establish
either (1) that his trial counsel had performed deficiently in failing to request
merger of two of petitioner’s counts, or (2) that counsel’s allegedly deficient perfor-
mance had prejudiced him. Held: Trial counsel performed inadequately and that
inadequate performance prejudiced petitioner.
Judgment on Claim 2(a) reversed and remanded; otherwise affirmed.
Dale Penn, Senior Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Brewer, Senior Judge.
DeHOOG, J.
Judgment on Claim 2(a) reversed and remanded; other-
wise affirmed.
Cite as 315 Or App 518 (2021) 519
DeHOOG, J.
Petitioner appeals a judgment denying him post-
conviction relief. He assigns error to the post-conviction
court’s denial of two of his claims, in which he asserted
that his trial counsel had provided inadequate and inef-
fective assistance of counsel under Article I, section 11,
of the Oregon Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution.1 We reject
petitioner’s first assignment of error without discussion. In
his second assignment of error, petitioner contends that the
post-conviction court erred in concluding that he had failed
to establish either (1) that his trial counsel had performed
deficiently in failing to request merger of two of petition-
er’s counts, or (2) that counsel’s allegedly deficient perfor-
mance had prejudiced him. As we explain below, we agree
with petitioner in both respects. Accordingly, we reverse and
remand.
The relevant facts are procedural and undisputed.
A jury found petitioner guilty of, among other charges, seven
counts of tampering with a witness. Two of those counts,
Counts 9 and 10, are the ones at issue in petitioner’s second
assignment of error. Both counts were charged under the
same statute, ORS 162.285, which provides as follows:
“(1) A person commits the crime of tampering with a
witness if:
“(a) The person knowingly induces or attempts to
induce a witness or a person the person believes may be
called as a witness in any official proceeding to offer false
testimony or unlawfully withhold any testimony; or
“(b) The person knowingly induces or attempts to
induce a witness to be absent from any official proceeding
to which the person has been legally summoned.
“(2) Tampering with a witness is a Class C felony.”
Count 9 asserted a violation of ORS 162.285(1)(b)
and alleged that petitioner had induced or attempted to
1
The performance standards for those claims are functionally equivalent.
Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons, 355
Or 598, 330 P3d 595 (2014). Throughout this opinion, we use the phrase “inade-
quate assistance of counsel” to refer to both standards.
520 Kurtz v. Cain
induce the victim “to absent herself from an official pro-
ceeding to which said witness had been legally summoned.”
Count 10 was charged under ORS 162.285(1)(a) and alleged
that petitioner had induced or attempted to induce the vic-
tim, “a person [who] the said defendant believed may be
called as a witness in an official proceeding, to withhold tes-
timony unlawfully.” At trial, the prosecutor specified that
Counts 9 and 10 were based on the same conduct by peti-
tioner, which took place during a phone call to the victim.
The jury found petitioner guilty of all counts, includ-
ing Counts 9 and 10. Trial counsel did not contend that
Counts 9 and 10 should merge, and the trial court entered a
separate conviction on each of those two counts.
In petitioner’s second claim in his petition for post-
conviction relief, petitioner alleged, among other things,
that counsel had performed inadequately in failing to argue
for merger as to Counts 9 and 10 and that the resulting
entry of an additional conviction prejudiced him. The post-
conviction court rejected the claim, holding that Counts 9
and 10 did not merge.
To obtain post-conviction relief based on an allega-
tion of inadequate assistance of counsel, a petitioner must
demonstrate two things: (1) that trial counsel failed to exer-
cise reasonable professional skill and judgment; and (2) that
the petitioner suffered prejudice as a result. Gable v. State
of Oregon, 353 Or 750, 758, 305 P3d 85 (2013) (citing Lichau
v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002)); see ORS
138.530(1)(a) (providing for post-conviction relief when there
has been a “substantial denial in the proceedings resulting
in petitioner’s conviction * * * of petitioner’s rights under the
Constitution of the United States, or under the Constitution
of the State of Oregon, or both, and which denial rendered
the conviction void”). We review post-conviction proceedings
for legal error. Bumgarner v. Nooth, 254 Or App 86, 93, 295
P3d 52 (2012).
On appeal, petitioner contends that, contrary to the
post-conviction court’s conclusion, case law establishes that
the trial court should have merged Counts 9 and 10 into a
single conviction. He notes that, in State v. Jenkins, 280 Or
App 691, 693, 383 P3d 395 (2016), rev den, 360 Or 752 (2017),
Cite as 315 Or App 518 (2021) 521
we accepted the state’s concession that, when “a defendant is
found guilty of multiple counts of tampering with a witness
based on a single act, the guilty verdicts merge under ORS
161.067, even though the counts involve different ways of
violating the statute.” Although Jenkins had not yet been
decided in 2013, when petitioner’s criminal trial took place,
he contends, as he did to the post-conviction court, that,
given the state of merger law at the time of his underlying
trial, all reasonable criminal defense counsel would have
raised the issue.
Notwithstanding the post-conviction court’s con-
trary understanding, the superintendent does not dispute
that Jenkins controls and that, under the principles set forth
in that case, Counts 9 and 10 should have merged. Instead,
the superintendent asks us to affirm on an alternative
ground. He contends for the first time on appeal that not all
reasonable trial counsel would have sought merger under
the circumstances. That is so, he argues, because, to do so,
“trial counsel would have been required to research and
analyze the structure, text, context, and legislative history
of ORS 162.285(1), and argue that the legislature intended
the separate subsections of that statute to constitute a sin-
gle crime.” According to the superintendent, all of that was
simply too much work for trial counsel to undertake, given
that, even after the merger of Counts 9 and 10, defendant
would have been convicted of six counts of witness tamper-
ing and likely would have received the same sentence.
Assuming, without deciding, that this is an appro-
priate situation in which to consider an argument other than
the one presented to the post-conviction court, we reject
the superintendent’s new contention. We first note that he
does not contend that the law of merger was too unsettled
to expect all reasonable counsel to argue for merger of the
witness-tampering counts at issue here, which were charged
under different paragraphs of the same statute and were
based on the same conduct. Nor would such an argument be
well taken, given that the merger principles that led to our
conclusion in Jenkins—which at the time were already clear
enough for the state to concede the issue—were established
years before petitioner’s criminal trial took place in 2013.
See, e.g., State v. White, 346 Or 275, 283-84, 211 P3d 248
522 Kurtz v. Cain
(2009) (analysis of whether a defendant’s conduct violates
“two or more statutory provisions” under ORS 161.067(1)
requires “consideration of whether the sections, although
addressing different concerns” (because they have differ-
ent elements) “also may address, on a more general level,
one unified legislative objective”); State v. Crawford, 215
Or App 544, 553-54, 171 P3d 974 (2007), rev den, 344 Or
280 (2008) (summarizing then-existing case law regarding
merger under ORS 161.067(1)); see also, e.g., Ross v. Hill,
235 Or App 340, 213 P3d 1185, rev den, 349 Or 56 (2010)
(holding that, at the time of the petitioner’s sentencing on
multiple kidnapping convictions in 2004—nine years before
petitioner’s trial in this case—“[i]n light of [two then-recent
appellate decisions regarding ORS 161.067(1)], and the sim-
ilarity in the structure of the aggravated murder statutes,
the burglary statutes, and those involving kidnapping, * * *
reasonable counsel should also have concluded that raising
the issue of merger in the context of kidnapping was likely
to be beneficial to petitioner”). Thus, by the time of petition-
er’s criminal trial in 2013, all reasonable trial counsel would
have sought merger of guilty verdicts on two counts charged
under the same statute for the same conduct.
As noted, rather than contending that the appli-
cable law was unsettled, the superintendent argues that
the analysis required to develop an argument in favor of
merger in this case was so onerous that, even if the possi-
bility of merger should have been obvious to counsel, rea-
sonable counsel could have chosen to forgo such an effort.
The superintendent points out that our analysis in Jenkins
was detailed and comprehensive and asserts that trial coun-
sel’s time would not have been well spent researching and
crafting such a statutory analysis. That may well be true.
However, that argument overlooks the fact that counsel
would not have had to engage in that level of analysis merely
to alert the trial court that merger was appropriate and, at a
minimum, preserve the issue for appeal. See State v. Walker,
350 Or 540, 550, 258 P3d 1228 (2011) (“Particularly in crim-
inal cases, in which there is a premium on considerations
of cost and speed, the realities of trial practice may be such
that fairly abbreviated short-hand references suffice to put
all on notice about the nature of a party’s arguments.”); see
Cite as 315 Or App 518 (2021) 523
also State v. G. L. D., 253 Or App 416, 422 n 3, 290 P3d 852
(2012), rev den, 354 Or 597 (2013) (youth’s merger argument
was preserved despite counsel’s failure to cite the relevant
subsection of ORS 161.067 or explicitly argue that an insuf-
ficient pause separated the youth’s crimes; despite those
deficiencies, the juvenile court was able to understand and
address the youth’s argument).
The superintendent also argues that trial counsel
was not inadequate, because, given petitioner’s criminal
history and the number of additional convictions entered
in this case, the entry of one witness-tampering conviction
fewer was not likely to affect his sentence in this case or in
future cases. That also may be true. However, we have often
noted the importance of having a person’s criminal history
accurately reflect the person’s criminal conduct. As we have
explained,
“the legislature intended that the number of convictions on
a person’s record accurately reflect that person’s criminal
conduct—including that the record not portray the person
as having engaged in more acts of criminal conduct than
the person actually committed. Accurate characterization
of a person’s criminal history is important for both legal
reasons and as a matter of human dignity and reputation.”
State v. K. R. S., 298 Or App 318, 329, 449 P3d 511 (2019);
State v. Ferguson, 276 Or App 267, 275, 367 P3d 551 (2016)
(“[W]e cannot ‘identify any reason why the ends of justice
would not be served by ensuring that defendant’s criminal
record accurately reflects the crimes for which he has been
convicted.’ ” (Quoting State v. Valladares-Juarez, 219 Or App
561, 565, 184 P3d 1131 (2008).)).
Given that, as we have concluded, the merger issue
should have been obvious to trial counsel and would not
have been burdensome to raise, the fact that it had rela-
tively little practical effect does not outweigh the need for
trial counsel to raise it in order to protect petitioner’s inter-
est in accurate characterization of his criminal history. In
failing to do so, trial counsel performed inadequately.
The superintendent does not contend that counsel’s
failure to argue for merger of Counts 9 and 10 did not preju-
dice petitioner, and we readily conclude that it did: It led to
524 Kurtz v. Cain
the entry of two convictions when petitioner’s conduct mer-
ited only one.
Judgment on Claim 2(a) reversed and remanded;
otherwise affirmed.