Burhoop v. Kelly ( 2022 )

86
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted October 26, affirmed December 7, 2022, petition for
review denied April 20, 2023 (371 Or 21)
JOSEPH ROBERT BURHOOP,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent, Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
19CV18914; A175122
Patricia A. Sullivan, Senior Judge.
Jason Weber argued the cause for appellant. Also on the
brief was O’Connor Weber LLC.
Jordan Silk, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Adam Holbrook, Assistant Attorney General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 323 Or App 86 (2022) 87
TOOKEY, P. J.
Petitioner appeals a judgment denying his peti-
tion for post-conviction relief. The petition claimed that
petitioner’s trial counsel was inadequate under the Oregon
Constitution and ineffective under the United States
Constitution for failing to use the procedure in ORS 135.432
to seek the trial court’s agreement to the sentencing recom-
mendation in petitioner’s plea agreement. On appeal, peti-
tioner assigns error to the post-conviction court’s denial of
relief on that claim.
After accepting “the post-conviction court’s findings
of historical fact if those findings are supported by the evi-
dence in the record,” Cartrette v. Nooth, 284 Or App 834,
840, 395 P3d 627 (2017), and “review[ing] the post-conviction
court’s denial of relief for legal error,” we conclude that, even
assuming trial counsel’s failure to use the procedure in ORS
135.432 constitutes inadequate and ineffective assistance,
the post-conviction court did not err in determining that
petitioner did not prove that he was prejudiced as a result.
In a claim for ineffective assistance of counsel
under the Sixth Amendment, “prejudice is shown when the
facts established by a preponderance of the evidence show
that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.’ ” McDonell v. Premo, 309 Or App 173,
184-85, 483 P3d 640 (2021), rev den, 369 Or 507 (2022) (quot-
ing Strickland v. Washington, 466 US 668, 694, 104 S Ct
2052, 80 L Ed 2d 674 (1984)). Under Article I, section 11,
prejudice is shown “when the facts established by a pre-
ponderance of the evidence show that the acts or omissions
of counsel had a tendency to affect the result of the trial.”
McDonell, 309 Or App at 184. The “state and federal tests
for establishing prejudice are functionally similar.” Id. at
185.
Here, petitioner argues on appeal that he suffered
prejudice because, but for trial counsel’s failure to use the
procedure in ORS 135.432, he either would have received
the sentence recommended in his plea agreement or would
have been able to withdraw his plea in order to negotiate a
different plea agreement or proceed to trial.
88 Burhoop v. Kelly
We conclude that the post-conviction court did not err
in determining that petitioner did not establish that he was
prejudiced. In a declaration submitted to the post-conviction
court, petitioner declared that he would not have entered a
plea of guilty had he known there was any possibility that
the trial court would not accept the sentence recommended
in his plea agreement; however, the post-conviction court
expressly found that that declaration was not credible. And
petitioner offered no evidence the trial court was required
to find credible that, but for trial counsel’s failure to use the
procedure in ORS 135.432, he would have received a differ-
ent sentence than he did, or that he would have withdrawn
his guilty plea or proceeded to trial in response to informa-
tion he might have obtained pursuant to ORS 135.432. See
Trujillo v. Maass, 312 Or 431, 435-37, 822 P2d 703 (1991)
(holding that the petitioner failed to demonstrate that he
was prejudiced by trial counsel’s “fail[ure] to submit the ten-
tative plea agreement to the Judge for the purpose of get-
ting the Judge to concur in the proposed disposition at the
time of sentencing pursuant to ORS 135.432,” because “peti-
tioner did not offer evidence to the effect that he would have
withdrawn his plea in response to information that he could
have obtained pursuant to ORS 135.432”). Consequently,
even assuming trial counsel’s performance was deficient,
petitioner did not establish a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.
Affirmed.