Pennington v. Cain ( 2023 )

418
This is a nonprecedential memorandum opinion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 June 14, affirmed August 9, 2023, petition for review
denied January 12, 2024 (371 Or 825)
JOQUAN ALFRED PENNINGTON,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
19CV14699; A176080
J. Burdette Pratt, Senior Judge.
Jason Weber argued the cause for appellant. Also on the
briefs was O’Connor Weber LLC.
E. Nani Apo, Assistant Attorney General, argued the
cause for respondent. Also on the brief was Ellen Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 327 Or App 418 (2023) 419
AOYAGI, P. J.
In this post-conviction appeal, petitioner challenges
the denial of relief on his claim for inadequate assistance
of counsel at sentencing.1 Petitioner committed 18 crimes
while driving under the influence of intoxicants, and, upon
conviction, the sentencing court imposed an upward dura-
tional departure sentence due to petitioner having been
on supervision at the time of the crimes. Specifically, peti-
tioner was on bench probation in three other cases for sim-
ilar crimes (driving while suspended, reckless driving, and
driving under the influence of intoxicants). Petitioner claims
that his counsel provided inadequate assistance by failing
to argue that being on bench probation was not a substantial
and compelling reason for upward departure. We affirm.
We review the denial of post-conviction relief for
errors of law. Green v. Franke, 357 Or 301, 312, 350 P3d 188
(2015). “A post-conviction court’s findings of historical fact
are binding on this court if there is evidence in the record to
support them.” Id. To be entitled to post-conviction relief, a
petitioner must prove both that counsel’s performance was
constitutionally deficient and that he suffered prejudice as a
result. Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487, adh’d to
as modified on recons, 355 Or 598, 330 P3d 595 (2014).
There are two analytical steps involved when a sen-
tencing court considers imposing an upward departure sen-
tence. The court must determine, first, whether the state
has proved the existence of any aggravating or enhancing
factors and, second, “whether the factors so proved provide a
substantial and compelling reason that justifies imposing a
sentence beyond the presumptive range.” State v. Upton, 339
Or 673, 679, 125 P3d 713 (2005); see ORS 137.671(1) (2015)
(“The court may impose a sentence outside the presump-
tive sentence or sentence range made presumptive under
ORS 137.669 for a specific offense if it finds there are
1
Petitioner makes his arguments under Article I, section 11, of the Oregon
Constitution, as well as the Sixth and Fourteenth Amendments to the United
States Constitution. The state and federal standards are “functionally equiva-
lent.” 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). We explain our rejection of petitioner’s
state constitutional argument in the text. We reject his federal constitutional
argument for the same reasons.
420 Pennington v. Cain
substantial and compelling reasons justifying a deviation
from the presumptive sentence.”).
Here, the sentencing court found as an aggravat-
ing factor that petitioner was “on supervision” at the time
of the crimes. See State v. Gallegos, 217 Or App 248, 256-57,
174 P3d 1086 (2007), rev den, 344 Or 670 (2008) (being on
supervision is an aggravating factor, even though it is not
included in the nonexclusive list in OAR 213-008-0002(1)(b)).
Petitioner does not challenge that finding, but he contends
that his trial counsel performed inadequately by failing to
argue to the sentencing court that his being on essentially
unsupervised bench probation was not a substantial and
compelling reason to justify upward departure.
The post-conviction court found that, in fact, trial
counsel did argue that the circumstances of petitioner’s
bench probation were such that there was not a substantial
and compelling reason to depart:
“Trial counsel argued that the fact that Petitioner was on
supervision at the time was not a basis for a departure
sentence in Petitioner’s case because it was a bench pro-
bation and he had little time to participate in treatment.
He argued that the factor of being on probation was not
sufficient to constitute a substantial and compelling rea-
son for departure. Trial counsel made the argument that
Petitioner faults him for not making.”
That finding is supported by the record, so we are bound
by it. Petitioner may believe that counsel’s argument would
have been more effective if presented differently, but we are
unpersuaded that it was constitutionally inadequate for
counsel to argue as he did.
We briefly address State v. Allen, 202 Or App 565,
123 P3d 331 (2005), disposition withdrawn, 207 Or App 295,
140 P3d 1135, rev den, 342 Or 46 (2006), which both parties
cite. In Allen, we discussed “the use of a departure sentence
based on the defendant’s supervision status under the ratio-
nale that the commission of a new crime demonstrated that
supervision had not deterred the defendant.” Id. at 569. We
read our case law as supporting the conclusion that depar-
ture “is warranted only if the factfinder can draw an infer-
ence as to the malevolent quality of the offender and the
Cite as 327 Or App 418 (2023) 421
failure of his parole status to serve as an effective deterrent.”
Id. at 570 (internal quotation marks omitted). We therefore
distinguished between (1) the fact of being on supervision,
which the defendant had admitted, and (2) the fact of super-
vision having failed to deter further criminal activity, which
needed to be found by a jury because the defendant had not
admitted it. Id.
Petitioner invokes the “malevolent quality of the
offender” language from Allen in support of his contention
that trial counsel’s arguments were inadequate, but we
agree with the state that Allen is no longer good law on
that point. In State v. Lennon, 348 Or 148, 157, 229 P3d
589 (2010), the Supreme Court addressed the “failure to
deter” departure factor, and it expressly rejected our con-
clusion (based on Allen) that a “malevolent quality” finding
was required. Shortly thereafter, in State v. Pratt, 238 Or
App 1, 4-5, 241 P3d 744 (2010) rev den, 349 Or 603 (2011),
we acknowledged that Lennon’s reasoning applied equally
to the “supervision status” departure factor and that, conse-
quently, a “malevolent quality” finding was not required. We
are unpersuaded that Allen supports petitioner’s arguments
for post-conviction relief.
In sum, the post-conviction court did not err in
denying relief.
Affirmed.