Brooks v. State of Oregon , 318 Or. App. 852 ( 2022 )

852
Submitted November 23, 2021, affirmed April 6, 2022
ADAM WAYNE BROOKS,
Petitioner-Appellant,
v.
STATE OF OREGON,
Defendant-Respondent.
Klamath County Circuit Court
19CV12014; A173440
508 P3d 67
Marci Warner Adkisson, Judge.
Jason Weber and O’Connor Weber LLC filed the brief for
appellant. Adam Wayne Brooks filed the supplemental brief
pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.
PER CURIAM
Affirmed.
Cite as 318 Or App 852 (2022) 853
PER CURIAM
In exchange for a lenient sentence, petitioner pleaded
no contest to one count of felony driving under the influ-
ence of intoxicants, ORS 813.010, ORS 813.011. In this post-
conviction proceeding, he seeks relief from that conviction,
alleging that his trial lawyer was inadequate and ineffec-
tive, 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, in two
respects: (1) by failing to obtain documents showing that
petitioner’s breath test, taken at the police station about one
hour after his arrest, was below the legal limit; and (2) by
subjecting petitioner to duress, thereby causing him to
enter his plea. The post-conviction court denied relief. We
affirm.
We review a post-conviction court’s grant or denial
of relief for legal error, accepting the court’s explicit factual
findings and its necessarily implicit factual findings if there
is evidence to support them. Green v. Franke, 357 Or 301,
312, 350 P3d 188 (2015). To prevail on his claims of inade-
quate and ineffective assistance of counsel, petitioner was
required to demonstrate two elements under each constitu-
tion: deficient performance and prejudice. Lowry v. Laney,
317 Or App 520, 521, 502 P3d 1215 (2022). To prove prej-
udice in these circumstances, petitioner was required to
demonstrate that “absent counsel’s deficiencies, petitioner
would have proceeded to trial instead of entering a plea.” Id.
at 521.
In this instance, the post-conviction court found
that petitioner had not persuasively demonstrated the fac-
tual underpinning of his claims, determining as follows:
“Petitioner failed to establish by a preponderance of the
evidence the following facts alleged in his petition:
“a. That trial counsel failed to investigate facts and cir-
cumstances surrounding the underlying criminal charges
arising from Petitioner’s intoxilyzer given at the jail over
an hour after his arrest and obtain such documents.
“b. That trial counsel subjected the petitioner to
duress in obtaining the plea[.]
854 Brooks v. State of Oregon
“c. That Petitioner would have proceeded to trial but
for inadequate assistance of counsel; and
“d. That Petitioner’s plea was not knowing, voluntary
and intelligent.”
Having reviewed the record, we conclude that it
reflects that the post-conviction court correctly applied the
applicable legal standards and that the record allows for the
court’s determination that petitioner did not persuasively
demonstrate the facts underpinning his claims. See Rowen
v. Gonenne, 274 Or App 803, 814, 362 P3d 694 (2015) (an
appellate court is bound by a trial court’s finding that evi-
dence is not sufficiently persuasive). To the extent petition-
er’s pro se supplemental brief challenges the post-conviction
court’s ruling on grounds other than its merits, we reject
those challenges without discussion. Accordingly, we affirm.
Affirmed.