Pike v. Cain , 303 Or. App. 624 ( 2020 )

624
200 v. Cain
Pike 30322,
April Or2020
App
Submitted February 26, 2019; reversed and remanded with instructions
to grant post-conviction relief on petitioner’s claim that trial counsel was
inadequate under Article I, section 11, for failing to adequately investigate and
present evidence of petitioner’s military service; otherwise affirmed
April 22, 2020
ADRIAN LESLIE PIKE,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
15CV1518; A164666
465 P3d 277
Petitioner, a decorated infantryman in the Army, pleaded guilty to second-
degree assault, a Measure 11 offense. At sentencing, his trial counsel attempted
to convince the trial court to exercise its authority to downwardly depart from the
presumptive 70-month sentence to a term of probation, so that petitioner could
continue his military service, but did not present to the court a developed picture
of petitioner’s military history and the high level of service that he has provided.
The court sentenced petitioner to 70 months’ incarceration, and, on appeal, the
post-conviction court denied relief. Petitioner now appeals that denial, contend-
ing that his trial counsel was inadequate and ineffective for, among other things,
failing to investigate and present evidence of his service in the military and,
relatedly, argue petitioner’s status as a servicemember as a mitigating factor
when seeking a downward departure from Measure 11 sentencing. Held: The
post-conviction court erred in denying petitioner relief. Trial counsel’s failure to
investigate and present evidence of petitioner’s military background was not the
product of reasonable professional skill and judgment. Further, petitioner was
prejudiced by counsel’s omission because there was more than a mere possibility
that the outcome of the proceeding could have been different had counsel exer-
cised reasonable professional skill and judgment.
Reversed and remanded with instructions to grant post-conviction relief on
petitioner’s claim that trial counsel was inadequate under Article I, section 11,
for failing to adequately investigate and present evidence of petitioner’s military
service; otherwise affirmed.
J. Burdette Pratt, Senior Judge.
Jason Weber and O’Connor Weber LLC filed the brief for
appellant.
Cite as 303 Or App 624 (2020) 625
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded with instructions to grant post-
conviction relief on petitioner’s claim that trial counsel was
inadequate under Article I, section 11, for failing to ade-
quately investigate and present evidence of petitioner’s mil-
itary service; otherwise affirmed.
626 Pike v. Cain
LAGESEN, P. J.
While on leave, petitioner, a decorated infantryman
in the Army, attended the St. Paul Rodeo with a group of
friends from his Army unit. He and his friends got drunk
and got into a fight with another group of men. In the course
of that fight, petitioner cut another man’s throat. For that
conduct, he pleaded guilty to one count of second-degree
assault, a Measure 11 offense. As part of the plea agree-
ment, the state and petitioner agreed that petitioner would
be eligible for a downward departure sentence under ORS
137.712 (2015), amended by Or Laws 2019, ch 553, § 13,
provided that the court found the required “substantial
and compelling reasons” to depart. At sentencing, the state
argued that such reasons did not exist, while petitioner’s
trial counsel attempted to convince the court that petition-
er’s military career was a reason to downwardly depart to
a term of probation, so that petitioner could continue his
military service. Trial counsel, however, did not present to
the court a developed picture of petitioner’s military history
and the high level of service that he has provided. Counsel
also did not point out to the court that OAR 213-008-0002
(1)(a)(J)1 explicitly recognizes servicemember status as a
mitigating factor that can be a substantial and compelling
reason for a downward departure. Unpersuaded by coun-
sel’s case, the court sentenced petitioner to the presumptive
70 months’ incarceration.
Petitioner now seeks post-conviction relief from his
sentence. He contends that his trial counsel was inadequate
and ineffective for, among other things, failing to investi-
gate and present evidence of his service in the military and,
relatedly, argue petitioner’s status as a servicemember as a
1
OAR 213-008-0002 (May 20, 2015) has been amended since petitioner’s sen-
tencing; all references to that rule in this opinion refer to the version in effect
during petitioner’s sentencing. Pertinently, OAR 213-008-0002(1) provides:
“[T]he following nonexclusive list of mitigating and aggravating factors may
be considered in determining whether substantial and compelling reasons
for a departure exist:
“(a) Mitigating factors:
“* * * * *
“(J) The offender’s status as a servicemember * * *.”
Cite as 303 Or App 624 (2020) 627
mitigating factor when seeking a downward departure from
Measure 11 sentencing.
We conclude that, under Richardson v. Belleque, 362
Or 236, 406 P3d 1074 (2017), petitioner is entitled to a new
sentencing hearing because his trial counsel’s decision not to
further develop the evidence of petitioner’s military service,
and his failure to argue for a downward departure under
ORS 137.712 (2015) and OAR 213-008-0002(1)(a)(J) based
on petitioner’s servicemember status, did not comport with
constitutional standards. We therefore reverse and remand
with instructions to grant post-conviction relief on petition-
er’s claim that trial counsel was inadequate and ineffective
for failing to investigate and develop further evidence per-
taining to petitioner’s military service.
I. BACKGROUND
A. Underlying Criminal Proceedings
At the time of the incident leading to petitioner’s
conviction, he had been an infantryman in the Army for
almost four years. Over the course of his service, petitioner
served in Afghanistan in a “designated imminent danger
pay area” and also received numerous military awards
and commendations. Those awards included the following:
“Afghanistan Campaign Medal w/ Campaign Star,” “Army
Commendation Medal,” “Army Achievement Medal,” “Army
Good Conduct Medal,” “National Defense Service Medal,”
“Global War on Terrorism Service Medal,” “Army Service
Ribbon,” “Overseas Service Ribbon,” “NATO Medal,” “Expert
Infantryman Badge,” and “Driver and Mechanic Badge
w/ Driver-Wheeled Vehicle(s) Clasp.” Only a small percent-
age of servicemembers receive the Expert Infantryman
Badge for distinctive service, and petitioner’s certificate of
discharge—issued after his direct criminal proceedings but
before the post-conviction hearing—would later note his
“Continuous Honorable Active Service.”
As for the incident, petitioner was at the St. Paul
Rodeo with some friends from his Army unit when his group
got into a fight with another group of men. Accounts of how
the fight started vary, but petitioner was very intoxicated
628 Pike v. Cain
and, in the end, petitioner cut a man’s throat with his Army-
issued knife. The wound required three stitches.
Petitioner was indicted on one count of assault
in the second degree and one count of attempted murder.
With the advice of counsel, he entered into a plea agree-
ment under which he pleaded guilty to the assault charge in
exchange for the dismissal of the attempted murder charge.
Assault in the second degree is a Measure 11 offense with a
presumptive sentence of 70 months. As noted, the state and
petitioner agreed, as part of the plea deal, that ORS 137.712
(2015) authorized the trial court to downwardly depart from
the presumptive sentence if the court found substantial and
compelling reasons to do so.
Petitioner’s objective at sentencing was to persuade
the sentencing court to grant petitioner a downward depar-
ture to probation by presenting evidence that petitioner “had
a career in the military, that he was doing well there and
would continue to do well there, that the military offered
structure and required accountability, and that it would
best protect society if [petitioner] remained in the military
and continued with his treatment.” The strategy was to
argue that petitioner was engaged in mutual combat when
he assaulted the victim and that petitioner was fit for pro-
bation because he took responsibility for his actions and, if
allowed to remain in the military, could continue to do well
and get the help that he needed in the form of anger man-
agement classes and an alcohol abuse treatment program.
Petitioner and his trial counsel prepared to implement this
strategy by having petitioner evaluated for fitness for proba-
tion by Correctional Services, Inc., a private business. They
also arranged for petitioner’s platoon sergeant in the Army
to testify on his behalf.
Trial counsel advised petitioner to, during the eval-
uation, “own” what he had done and his alcohol problem.
At the evaluation, petitioner explained, “I was arrested
because a fight broke out and two people were stabbed
including myself. I pled guilty for assault on the victim that
night.” When asked what he would change about himself
in light of that incident, petitioner responded, “I definitely
don’t plan to drink like that again. I surround myself with
Cite as 303 Or App 624 (2020) 629
different people now. That night could have been changed by
not being around those people.” Petitioner, however, denied
having a problem with alcohol, and the evaluator wrote that
petitioner “does not see that he needs to change anything
about himself in regards to this incident other than chang-
ing his friends.” The evaluator also noted as areas of concern
petitioner’s assaultive record (the month before this inci-
dent, he had completed probation stemming from a previous
fight that he had been in while drunk), his alcohol problem,
and the fact that petitioner lived out of state. Despite those
concerns, the evaluator concluded, “The outcome that would
be the most beneficial for all involved is for [petitioner] to
remain in the military and serve his probation under their
auspices. He has a higher likelihood of a positive career and
chance at a productive life if he continues.”
At the sentencing hearing, consistent with petitioner’s
strategy, trial counsel argued that petitioner should be
granted a lighter sentence because he was engaged in
mutual combat during the assault and because, afterwards,
petitioner was cooperative with the police. He also argued
other mitigating factors, specifically, that petitioner had
taken responsibility for his actions, that the harm from his
actions was less than would typically be expected from a
knife wound, and that petitioner was amenable to treatment.
In support of the strategy, counsel introduced evi-
dence of the probation fitness evaluation. Petitioner’s ser-
geant also testified in support of petitioner’s case for pro-
bation. He stated that petitioner was a “good soldier,” who
“excelled above his peers,” and who, prior to the assault, was
up for a promotion to sergeant. He also testified that peti-
tioner’s performance continued to be exemplary even after
the assault, and that petitioner had completed the Army
Substance Abuse Program (ASAP) and would attend anger
management classes. He added that the Army intended to
keep petitioner if the resolution of the case allowed.
The state argued that there was no mutual combat
and that the military was unlikely to help petitioner turn
his life around because he was in the military when the
incident happened. In support, the prosecutor stated that,
directly before the assault, petitioner and his friends were
630 Pike v. Cain
shouting that the other group should not mess with them
because they were “Army rangers.” In response, trial coun-
sel showed the court petitioner’s enlisted-record brief for the
purpose of demonstrating that petitioner was not an Army
ranger:
“[TRIAL COUNSEL]: I do have, Judge, his military
record that I told the State I was going to allow you to see.
“THE COURT: Is there anything in particular on this
that you want me to look at?
“[TRIAL COUNSEL]: He’s not a ranger. And when the
Court’s ready, [petitioner] will want to address.
“THE COURT: Certainly. Is there anything in partic-
ular that you want me to—do you just want me to read the
entire record or—
“[TRIAL COUNSEL]: No, Judge. I just wanted to
present it to you that he’s not a ranger.
“THE COURT: Oh, it’s just to show that he’s not a
ranger.
“[TRIAL COUNSEL]: He does have a good conduct
medal and things like that.”
The enlisted-record brief that counsel handed the court
included an “Awards and Decorations” section, which indi-
cated that petitioner had earned 10 different commenda-
tions. The awards were described using shorthand and
abbreviations, and the brief did not reveal what petitioner
had done to receive those awards. For example, “Expert
Infantryman Badge” read as “EIB,” and so on. Trial counsel
introduced no additional evidence about petitioner’s military
service at the hearing and, in particular, did not explain to
the trial court that petitioner served in Afghanistan in a
“designated imminent danger pay area” or that petitioner
had been awarded the commendations described above.
Petitioner also addressed the trial court directly.
He explained that he understood that he had a problem
with alcohol and that he was not himself during the inci-
dent. He added that he planned to continue to make bet-
ter choices, work on his ASAP program, and enroll in anger
management classes. He also apologized to the victim. In
Cite as 303 Or App 624 (2020) 631
response, the court confirmed that, prior to the sentencing
hearing, petitioner had largely blamed the assault on the
circumstances and not himself. The court also questioned
petitioner on petitioner’s mutual combat theory and about a
past incident in Vermont where petitioner had thrown two
people off of a partially-built deck during a fight. Ultimately,
the court concluded that it was not persuaded that probation
was appropriate and declined to downwardly depart from
the otherwise-applicable 70-month sentence:
“I’m not impressed with the defendant’s very late claims
to have recognized and wanting to address the problems
that are the root of his criminal involvement. I don’t see
him taking real responsibility for the extraordinary and
virtually sociopathic outbursts that he has engaged in.
Society deserves to know that when people act this way,
they’re going to be punished. And, you, [petitioner], deserve
to know that when you or anyone else acts this way, they’re
going to be punished. This is not a case where I would
remotely consider optional probation. This is a case where a
Department of Corrections sentence is absolutely essential.
It’s a case where people of Oregon have reflected their own
assessment of what the presumption ought to be and that’s
a 70-month sentence with the possibility of an exception
only under substantial and compelling reasons. The rea-
sons that have been offered, even if I were inclined to think
that 37 to 38 months might be more appropriate, the rea-
sons that have been offered today are not such that I would
say sufficient substantial and compelling reasons to neces-
sitate less than a 70-month sentence. I don’t find mutual
combat. I don’t find mutual combat here. I don’t find that
there was mutual combat to any measure. I don’t believe
the belated and sort of fortuitously-timed claims of sud-
denly recognizing the root causes of problems. I hope that
you carry that story with you and that you start to believe
it because if you address it during your time in prison, then
maybe you’ll be in a position to have a productive life after
you’re out and you are a very young man. There’s going to
be a lot of time after you’re out. If you’ve addressed your
alcohol and anger issues, there’s maybe problems even
deeper than that because these crimes do appear to me to
be close to sociopathic. I urge you to get whatever counsel-
ing is available to you.
“I’m going to impose the Ballot Measure 11 presumptive
70-month sentence.”
632 Pike v. Cain
B. Post-Conviction Proceedings
Petitioner then initiated the present post-conviction
proceeding. He alleged, among other things, that trial coun-
sel was inadequate, in violation of Article I, section 11, of
the Oregon Constitution for failing to more fully develop the
evidence of his military record in order to persuade the sen-
tencing judge to downwardly depart from the presumptive
70 months under Measure 11. In support of that claim, peti-
tioner introduced evidence that identified the nature of his
military commendations, listed above.
Responding to that claim, trial counsel acknowl-
edged that he did not inquire into petitioner’s military back-
ground and was largely unfamiliar with the significance
of petitioner’s military commendations. He explained that
he did not do so out of concerns that such a strategy could
“backfire” because the court “could ask why petitioner had
been unable, despite his experience as a soldier and the
Army’s emphasis on honor and dignity, to comport himself
appropriately at the St. Paul Rodeo.”
The post-conviction court denied relief, concluding
that “Petitioner’s attorney adopted a reasonable strategy
but any chance for the strategy to succeed was lost when the
Petitioner failed to take responsibility for his behavior and
alcohol problem.”
Petitioner appealed. On appeal he assigns error to
the post-conviction court’s denial of relief on, among others,
his claim that trial counsel was inadequate and ineffective,
in violation of the state and federal constitutions, for not fur-
ther developing the record of his military service and argu-
ing for a downward departure based on that service. The
superintendent responds that the post-conviction court did
not err, that trial counsel’s decisions were reasonable tac-
tical decisions, and that, in any event, petitioner failed to
prove prejudice.
II. STANDARD OF REVIEW AND
GENERAL LEGAL STANDARDS
We review a post-conviction court’s grant or denial
of relief for legal error, accepting the court’s implicit and
Cite as 303 Or App 624 (2020) 633
explicit factual findings if there is evidence to support them.
Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). At
issue in this matter are parallel claims of inadequate assis-
tance of trial counsel under Article I, section 11, and ineffec-
tive assistance of trial counsel under the Sixth Amendment
to the United States Constitution. To establish that his
trial counsel rendered inadequate assistance for purposes
of Article I, section 11, petitioner was required to prove two
elements: (1) a performance element: trial counsel “failed
to exercise reasonable professional skill and judgment”;
and (2) a prejudice element: “petitioner suffered prejudice
as a result of counsel’s inadequacy.” Johnson v. Premo, 361
Or 688, 699, 399 P3d 431 (2017). A functionally equivalent
two-element standard governs petitioner’s claim of ineffec-
tive assistance of counsel under the Sixth Amendment. Id.To prevail on that claim, petitioner was required to demon-
strate that “trial counsel’s performance ‘fell below an objec-
tive standard of reasonableness’ ” and also that “there was a
‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.’ ” Id. at 700 (quoting Strickland v. Washington, 466 US
668, 688, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984)). We
examine the challenged rulings of the post-conviction court
in light of those standards.
III. ANALYSIS
The question before us is whether, in failing to
investigate and present additional evidence of petitioner’s
military history in support of the case for downward depar-
ture, petitioner’s trial counsel failed to exercise reasonable
professional skill and judgment and, if so, whether that fail-
ure prejudiced petitioner. See Richardson, 362 Or at 255. We
conclude that the answer to both questions is yes.
The Supreme Court’s decision in Richardson sup-
plies the framework for evaluating a “failure to investigate”
claim like petitioner’s. Monfore v. Persson, 296 Or App 625,
635, 439 P3d 519 (2019). There, as here, the issue was the
constitutional adequacy of counsel’s investigation to support
his strategy choice at the petitioner’s sentencing, at which
the state would urge the court to sentence the petitioner
as a dangerous offender. Richardson, 362 Or at 258. Trial
634 Pike v. Cain
counsel in that case opted not to hire an expert to rebut
testimony from the state’s expert regarding the petitioner’s
supposed personality disorder, and the petitioner alleged
that the decision was not grounded in a constitutionally ade-
quate investigation of the facts—in particular, an investiga-
tion of the petitioner’s own juvenile background. Id.
The Supreme Court agreed with the petitioner.
Noting the “nature and complexity of the issues presented
by the dangerous-offender hearing,” the court explained
that petitioner’s trial counsel knew that the stakes were
high because the petitioner could get a significantly lon-
ger sentence than he otherwise would have, that the jury
would hear from the state’s expert witness who would tes-
tify that the petitioner had an antisocial personality disor-
der, and that that witness’s opinion would be based on an
incomplete juvenile history of the petitioner. Id. at 257. Trial
counsel also knew that the petitioner had had a rough child-
hood but nevertheless did not investigate the petitioner’s
school records. Id. at 258. Considering counsel’s conduct, as
informed by the nature of the case and counsel’s knowledge
at the time he made his decisions on how to proceed with
the case, the court concluded that the failure to investigate
the petitioner’s records was not the product of reasonable
professional skill and judgment. Id. Instead, under those
circumstances, reasonable counsel would have familiarized
himself with the petitioner’s records and consulted with a
defense expert to evaluate how best to address the testi-
mony of the state’s expert. Id. at 262.
The court then addressed how to ascertain preju-
dice in the context of a failure-to-investigate claim. It deter-
mined that “the assessment involves a sequential inquiry
into whether ‘there was more than a mere possibility’ that
an adequate investigation would have yielded information
that could have been used at the sentencing hearing in a
way that gave rise to ‘more than a mere possibility’ that
the outcome of the proceeding could have been different as
a result.” Monfore, 296 Or App at 636 (quoting Richardson,
362 Or at 266-68 (internal quotation marks omitted)).
Applying that analysis to the facts of this case, we
conclude that counsel’s failure to investigate fully petitioner’s
Cite as 303 Or App 624 (2020) 635
military history was not the product of reasonable pro-
fessional skill and judgment. First, the stakes of the sen-
tencing hearing were high. Petitioner faced a presumptive
70-month sentence for second-degree assault, which would
end his promising career in the military. Second, counsel
knew that petitioner’s goal was to remain in the Army, so
they adopted a strategy aimed at allowing petitioner to
remain in the Army. Third, counsel’s stated reason for lim-
iting his investigation is inconsistent with the affirmative
sentencing strategy that counsel chose. Counsel said that
it was a tactical decision to limit his investigation and not
develop evidence of petitioner’s military service because such
a strategy could have backfired if the court had asked “why
petitioner had been unable, despite his experience as a sol-
dier and the Army’s emphasis on honor and dignity, to com-
port himself appropriately at the St. Paul Rodeo.” But coun-
sel’s whole strategy at sentencing was to convince the court
that petitioner should remain in the military, and the risk
that the court would pose that question to petitioner would
have been present with or without the evidence of petition-
er’s exceptional service. Beyond that, having affirmatively
adopted the strategy of trying to convince the court to sen-
tence petitioner such that he could remain in the military,
counsel exercising reasonable professional skill and judg-
ment would develop a command of his client’s performance
in the military. That is because the success of that strategy
would necessarily depend on convincing the court that keep-
ing the client in the military was a “substantial and com-
pelling reason” to depart from the presumptive Measure 11
sentence. For those reasons, counsel’s limited investigation
into petitioner’s military record, and, relatedly, counsel’s
failure to develop that evidence, cannot be said to be the
product of reasonable professional skill and judgment.
That leaves the issue of whether petitioner was
prejudiced. As noted, that requires a sequential inquiry
into whether there is “more than a mere possibility” that
a reasonable investigation would have yielded information
that could have been used at sentencing in a way giving
rise to “more than a mere possibility” that the outcome of
the proceeding could have been different. Monfore, 296 Or
App at 636. In assessing whether omitted information could
636 Pike v. Cain
have affected the outcome of the proceeding, the Supreme
Court has instructed that we must disregard the sentenc-
ing judge’s “factual identity or personal characteristics.”
Jackson v. Franke, 364 Or 312, 326-27, 434 P3d 350 (2019).
That is, “[a]s a matter of law, * * * the prejudice analysis
should not involve any consideration of the individual” judge
or “the factors that might or might not have motivated” a
specific judge to make a decision. Id. In other words, we are
assessing whether the omitted information is the type that
could have affected the outcome if presented to an objective,
reasonable factfinder.
We conclude that that standard is met here. Had
counsel fully investigated petitioner’s military record, “there
is more than a mere possibility” that that investigation
would have yielded information that could have been used
at petitioner’s sentencing. Specifically, it would have yielded
information that petitioner had served in Afghanistan and
received the numerous commendations for his service iden-
tified above. That information certainly could have been
used at sentencing to substantiate the case that petition-
er’s servicemember status was a substantial and compel-
ling reason under OAR 213-008-0002(1)(a)(J) for downward
departure authorized by ORS 137.712 (2015). And there is
“more than a mere possibility” that that information could
have affected the result of the proceeding. That is because it
paints a fuller picture of both (1) the service that petitioner
has provided to his country and (2) the success petitioner
has had in the Army in conforming his conduct to societal
expectations. Such an amplified picture of petitioner’s ser-
vice, particularly combined with the testimony of petitioner’s
sergeant about how the Army would help petitioner address
his issues with alcohol and anger that contributed to his
crime, could have caused the sentencing court to conclude
that a downward departure from the presumptive 70-month
sentence was a preferable and appropriate way to address
petitioner’s criminal conduct in view of his service to the
country and the resources available in the military.
For the foregoing reasons, trial counsel was inad-
equate and ineffective for failing to investigate fully peti-
tioner’s military history and present that evidence to the
sentencing court. We therefore reverse and remand with
Cite as 303 Or App 624 (2020) 637
directions to grant relief on petitioner’s claim that trial
counsel was inadequate under Article I, section 11, for fail-
ing to adequately investigate and present evidence of peti-
tioner’s military service.
Reversed and remanded with instructions to grant
post-conviction relief on petitioner’s claim that trial coun-
sel was inadequate under Article I, section 11, for failing to
adequately investigate and present evidence of petitioner’s
military service; otherwise affirmed.