Horseman v. Cain ( 2023 )

550
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 25, affirmed March 8, 2023
SCOTT MICHAEL HORSEMAN,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
19CV38161; A175555
J. Burdette Pratt, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
opening brief for appellant. Scott Horseman filed the sup-
plemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Nonprecedential Memo Op: 324 Or App 550 (2023) 551
AOYAGI, P. J.
Petitioner appeals a judgment denying post-
conviction relief. In his counseled assignment of error, peti-
tioner contends that the post-conviction court erred in deny-
ing his second claim for relief, in which petitioner alleged
that his criminal trial counsel provided ineffective assis-
tance when, without consulting with petitioner, he conceded
during closing argument that petitioner was guilty of cer-
tain charges. We agree with the post-conviction court that
petitioner failed to prove prejudice and, on that basis, reject
the claim of error. In a pro se supplemental assignment of
error, petitioner argues that ORS 163.670 is unconstitution-
ally vague and overbroad, as relevant to his five convictions
for using a child in a display of sexually explicit conduct
(display). That claim is unpreserved. Accordingly, we affirm.
Ineffective assistance. Petitioner was charged with
seven counts of sexual abuse and five counts of display,
involving two teenaged boys. The charges were tried to a
jury over three days. In opening statement, petitioner’s trial
counsel took the position that the evidence would show that
petitioner was innocent of all charges. Both victims pro-
ceeded to testify to similar conduct by petitioner, which was
corroborated by other evidence. Petitioner did not testify.
In closing argument, counsel bluntly stated that petitioner
was “guilty of sexual abuse,” that there was not really “any
dispute about that,” and “there’s no denying that.” Counsel
then argued to the jury why petitioner was not guilty of the
display charges, which essentially reduced to an argument
about the scope of the statute. Petitioner was convicted on all
counts, and we affirmed the convictions. State v. Horseman,
294 Or App 398, 432 P3d 258 (2018), rev den, 364 Or 723(2019).
Petitioner sought post-conviction relief. As relevant
here, he asserted that he received ineffective assistance of
counsel when his trial counsel conceded in closing argu-
ment that petitioner was guilty of the sexual-abuse charges.
Petitioner attested that he never consented to such a strat-
egy, did not have “an informed discussion” with counsel
about it, and was “shocked” and “extremely disappointed”
when counsel told the jury that he was guilty of sexual abuse
552 Horseman v. Cain
without consulting him. In response, trial counsel attested
that, after hearing the state’s case, he believed that the “only
option” was to concede guilt on the sexual-abuse charges
and focus on contesting the display charges. He believes
that petitioner knew that the trial had gone poorly for him,
and he believes that he talked to petitioner about admit-
ting guilt on the sexual-abuse charges in closing argument.
However, trial counsel is “not 100 percent sure” whether he
got “explicit consent” from petitioner for that strategy, based
on his trial notes. Trial counsel attested that he “would
not admit [a] client’s guilt at a trial if [he] did not believe
that [his] client consented to such a strategy” and that the
“only thing” that petitioner insisted on throughout the pros-
ecution was that everyone was misconstruing the display
statute.
The court denied relief, concluding that petitioner
both failed to prove ineffective assistance and failed to prove
prejudice. See Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703(1991) (“The burden is on petitioner to show, by a preponder-
ance of the evidence, facts demonstrating that trial counsel
failed to exercise reasonable professional skill and judgment
and that petitioner suffered prejudice as a result.”).
Petitioner maintains that trial counsel provided
ineffective assistance when he conceded petitioner’s guilt
on the sexual-abuse charges without petitioner’s consent,
and he argues that the post-conviction court erred in con-
cluding otherwise. The state disagrees. We need not resolve
whether counsel performed deficiently, because we agree
with the post-conviction court that petitioner failed to prove
prejudice. That is, even assuming that counsel did not ade-
quately consult with petitioner before conceding guilt on
the sexual-abuse charges, petitioner failed to prove that it
had “ ‘a tendency to affect the result of his trial.’ ” Johnson v.
Premo, 361 Or 688, 699, 399 P3d 431 (2017) (quoting Lichau
v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002)).
At the post-conviction trial, petitioner testified
that, if trial counsel had adequately discussed with him
beforehand the strategy that counsel ended up pursuing in
closing argument, he would have agreed to it. We are unper-
suaded by petitioner’s arguments that he proved prejudice
Nonprecedential Memo Op: 324 Or App 550 (2023) 553
notwithstanding that statement.1 We also disagree with
petitioner that the court’s prejudice ruling improperly pre-
sumed adequate assistance of counsel. We therefore reject
petitioner’s contention that the post-conviction court erred
in denying relief on his second claim.
Constitutional challenge to ORS 163.670. In a pro se
supplemental assignment of error, petitioner argues that
ORS 163.670 is unconstitutionally vague and overbroad.
Petitioner makes that argument for the first time on appeal.
“Preservation principles apply in the context of post-
conviction relief and, as a general rule, arguments not made
to the post-conviction court in support of a claim will not be
considered on appeal.” Hale v. Belleque, 255 Or App 653, 660,
298 P3d 596, adh’d to on recons, 258 Or App 587, 312 P3d
533, rev den, 354 Or 597 (2013); see ORS 138.580 (requir-
ing the post-conviction petition to “set forth specifically the
grounds upon which relief is claimed”); ORS 138.550(3) (pro-
viding that, generally, any grounds for relief not included
in the post-conviction petition will be “deemed waived”). We
therefore cannot consider petitioner’s argument that ORS
163.670 is unconstitutionally vague and overbroad. See
Pinnell v. Palmateer, 200 Or App 303, 333-34, 114 P3d 515
(2005), rev den, 340 Or 483 (2006) (explaining that “the alle-
gations in a post-conviction petition limit the issues before
the court, and any claim that a petitioner fails to include in
the original or amended petition is waived,” such that even
“plain error” review is unavailable).
To the extent that petitioner also means to claim
that the trial evidence was legally insufficient to convict
him of display—perhaps akin to arguing that criminal trial
counsel was ineffective for failing to move for a judgment of
acquittal on the display counts, or that criminal appellate
counsel was ineffective for failing to pursue that issue on
direct appeal—that claim also was not raised to the post-
conviction court and so cannot be addressed on appeal. The
case law has evolved since petitioner’s criminal trial in a way
1
The post-conviction court also pointed to the strength of the prosecution’s
case (“As noted above, the evidence against Petitioner was strong and he chose
not to testify to rebut any of it.”) as relevant to petitioner’s failure to prove prej-
udice. We do not reach that aspect of the reasoning, as it is not necessary to our
disposition.
554 Horseman v. Cain
that lends some support to his view of the display statute.
See, e.g., State v. Clay, 301 Or App 599, 457 P3d 330 (2019).
However, petitioner’s convictions are final at this point, and
any available relief must be sought through post-conviction,
using proper post-conviction procedures, and subject to the
statutory limitations on post-conviction relief.
Affirmed.