Green v. Kelly ( 2023 )

700
This is a nonprecedential memorandum opinion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 2, 2022, reversed and remanded with instructions
to allow petitioner’s claims 12(8) and (10) and to return the matter to the trial
court to amend the judgment by merging Counts 5 and 6, and for resentencing,
otherwise affirmed August 30, 2023, petition for review denied
January 12, 2024 (371 Or 825)
VYRON GREEN,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
18CV22152; A175365
Patricia A. Sullivan, Senior Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
Susan G. Howe, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Reversed and remanded with instructions to allow peti-
tioner’s claims 12(8) and (10) and to return the matter to the
trial court to amend the judgment by merging Counts 5 and 6,
and for resentencing, otherwise affirmed.
Nonprecedential Memo Op: 327 Or App 700 (2023) 701
HELLMAN, J.
Petitioner appeals from a judgment that granted in
part and denied in part his petition for post-conviction relief.
In a single assignment of error, petitioner contends that the
post-conviction court erred in 12 respects. 1 We address each
argument below, and reverse and remand only on his sen-
tencing arguments regarding Counts 5 and 6. We otherwise
affirm.
All of petitioner’s arguments relate to claims
regarding the adequacy of his representation by trial and
appellate counsel. Under Article I, section 11, of the Oregon
Constitution, a criminal defendant has the right to ade-
quate counsel. Farmer v. Premo, 363 Or 679, 690, 427 P3d
170 (2018). “Similarly, the Sixth Amendment to the United
States Constitution guarantees the right to ‘effective’ assis-
tance of counsel.” Sparks v. Premo, 289 Or App 159, 168,
408 P3d 276 (2017), rev den, 363 Or 119, cert den, ___ US
___, 139 S Ct 569 (2018) (quoting Strickland v. Washington,
466 US 668, 688, 104 S Ct 2052, 80 L Ed 2d 674 (1984)). The
standards for assessing the performance of counsel under
both constitutions are “functionally equivalent.” Johnson v.
Premo, 361 Or 688, 699, 339 P3d 431 (2017). To be entitled to
post-conviction relief based on a claim of inadequate assis-
tance of counsel under Article I, section 11, a petitioner must
prove two elements: first, that trial counsel failed to exercise
reasonable professional skill and judgment, and second, that
the petitioner suffered prejudice from counsel’s inadequacy.
Id. Similarly, to prevail on a claim of ineffective assistance
of counsel under the Sixth Amendment, petitioner must
demonstrate that counsel provided constitutionally deficient
representation which prejudiced him. Strickland, 466 US at
694.
1
We note that petitioner’s brief appears to reiterate, nearly verbatim, the
arguments made in his trial memorandum to the post-conviction court. He does
not explain how the post-conviction court erred in reaching the factual findings
and legal conclusions that it did. Indeed, he does not even quote those findings
and conclusions. Such a presentation violates ORAP 5.45 in several respects.
And, although the failure to follow ORAP 5.45 does not affect our ultimate dis-
position of the legal issues in the case, it is worth noting that a brief that simply
restates arguments made to a lower tribunal does not demonstrate reversible
error under the applicable standard of review and does not assist an appellate
court in answering the dispositive legal questions.
702 Green v. Kelly
First Argument. Petitioner argues that trial counsel
provided inadequate and ineffective representation when he
failed to challenge the admissibility of evidence that officers
obtained after they arrested and questioned petitioner with-
out first providing Miranda warnings. Petitioner bases that
argument on the officers’ requests to search his phone and
his responses to those requests. But a request for consent
to search is not an interrogation that requires a Miranda
warning. State v. Hudson, 253 Or App 327, 345-46, 290
P3d 868 (2012), rev den, 353 Or 562 (2013). Therefore, the
post-conviction court did not err when it determined that a
motion to suppress on those grounds would not have been
successful and concluded that petitioner did not prove inad-
equate or ineffective representation under either the state
or federal constitution.
Second Argument. Petitioner argues that trial coun-
sel provided inadequate and ineffective representation when
counsel failed to argue that any consent by petitioner to a
search of his cell phone was involuntary. On that claim, the
post-conviction court found that petitioner was “unable to
show that a motion based on Petitioner’s consent to search
the phone would have been successful” and that “Petitioner
is unable to show prejudice.” As noted above, petitioner does
not explain why those determinations were errors, and after
reviewing the record we hold that they were not.
Petitioner’s argument depends on a court agreeing
with his factual narrative about his encounter with the pro-
bation officers. However, both the trial court and the post-
conviction court rejected that narrative. Critically, the trial
court explicitly found that when petitioner was asked for
consent to search his phone he responded, “Go ahead, you
won’t find anything,” rejecting petitioner’s testimony that he
did not consent to the search. In addition, when the post-
conviction court determined that petitioner was “unable
to show he would have been successful” in suppressing the
evidence on a lack-of-voluntary consent theory, it implicitly
rejected petitioner’s proffered narrative that the officers’
actions demonstrated that any consent was involuntary.
Because they are supported by evidence in the record, both
the explicit and implicit factual findings are binding on us.
Nonprecedential Memo Op: 327 Or App 700 (2023) 703
Waldorf v. Premo, 301 Or App 572, 573, 457 P3d 298 (2019).
And with the facts as found by the post-conviction court,
it did not err in determining that any motion to suppress
due to involuntary consent would have been unsuccessful
and concluding that petitioner did not prove inadequate or
ineffective representation under either the state or federal
constitution.
Third Argument. Petitioner argues that trial coun-
sel provided inadequate and ineffective representation
when he failed to challenge the lack of proof that petitioner
“induced” the minor victim to engage in sexually explicit
conduct. A defendant induces a child, under ORS 163.670(1),
“if the defendant persuades or influences the child to partic-
ipate or engage in sexually explicit conduct.” State v. Smith,
261 Or App 665, 674, 322 P3d 1129 (2014), abrogated in part
on other grounds by State v. Parra-Sanchez, 324 Or App 712,
527 P3d 1008 (2023). At trial, the state introduced evidence
that petitioner directed the minor victim to make and send
him a sexually explicit video and several sexually explicit
photographs and that the victim complied with those direc-
tives. Defendant’s conduct of directing the victim to take
those actions falls within the scope of “persuading or influ-
encing.” See State v. Carey-Martin, 293 Or App 611, 635, 430
P3d 98 (2018) (so recognizing). The post-conviction court did
not err in determining that any challenge to the lack of proof
of inducement would have been unsuccessful and concluding
that petitioner did not prove inadequate or ineffective repre-
sentation under either the state or federal constitution.
Fourth and Sixth Arguments. Petitioner argues that
trial counsel provided inadequate and ineffective represen-
tation when he failed to argue that Counts 4 through 6 were
part of the same criminal episode, such that they should
merge. The conduct underlying Count 4 occurred several
weeks before the conduct underlying Counts 5 and 6, and
was not so closely linked in time, place, and circumstance
that a complete account of Count 4 could not be related with-
out relating the details of Counts 5 and 6. Therefore, Count 4
did not arise out of the same “act or transaction” as Counts
5 and 6. See State v. Dent, 324 Or App 167, 172, 525 P3d 487
(2023). The post-conviction court did not err in determining
704 Green v. Kelly
that counsel would have been unsuccessful in arguing for
merger and concluding that petitioner did not prove inade-
quate or ineffective representation under either the state or
federal constitution.
Eighth Argument. Petitioner argues that appellate
counsel provided inadequate and ineffective representa-
tion when he failed to argue that the search of petitioner’s
cell phone was an unlawful search incident to arrest under
Riley v. California, 573 US 373, 403, 134 S Ct 2473, 189 L Ed
2d 430 (2014). As explained above, the post-conviction court
found that petitioner voluntarily consented to a search of
his cell phone. The post-conviction court did not err in deter-
mining that petitioner’s consent provided a valid exception
to the warrant requirement and concluding that petitioner
did not prove inadequate or ineffective representation under
either the state or federal constitution.
Ninth and Tenth Arguments. Petitioner argues that
appellate counsel provided inadequate and ineffective rep-
resentation when he failed to argue that the admission of
Craigslist ads that the victim placed, and email correspon-
dence that ensued as a result of the ads, violated defendant’s
confrontation rights because no one from Craigslist or the
victim’s email provider testified at trial. Petitioner had the
opportunity, pursuant to ORS 136.583(7), to seek the pres-
ence at trial of the custodian of records. His failure to do
so constituted a waiver of his right to cross-examination.
State v. Glass, 246 Or App 698, 700-01, 268 P3d 689 (2011),
rev den, 352 Or 25 (2012) (“notice-and-demand” statutes con-
stitutionally govern the time when defendants must raise
Confrontation Clause objections); see also Bullcoming v. New
Mexico, 564 US 647, 666, 131 S Ct 2705, 180 L Ed 2d 610(2011) (notice-and-demand procedures render reports admis-
sible while preserving a defendant’s ability to call the wit-
ness underlying the report); Melendez-Diaz v. Massachusetts,
557 US 305, 326-27, 129 S Ct 2527, 174 L Ed 2d 314 (2009)
(notice-and-demand procedures permit defendants to assert
or forfeit (by silence) their confrontation rights after receiv-
ing notice that the state intends to introduce reports at
trial). The post-conviction court did not err in determining
that a reasonable appellate attorney would not have raised
Nonprecedential Memo Op: 327 Or App 700 (2023) 705
an argument that had been waived below and concluding
that petitioner did not prove inadequate or ineffective repre-
sentation under either the state or federal constitution.
Eleventh Argument. Petitioner argues that appel-
late counsel provided inadequate and ineffective represen-
tation when he failed to argue that a detective’s testimony
relaying the victim’s statements was inadmissible hearsay
because the state had not given petitioner notice as required
by OEC 803(18a). The post-conviction court concluded that
petitioner’s argument failed due to a lack of proof of both
parts of the inadequate and ineffective analysis. On appeal,
petitioner does not explain why that ruling is legally incor-
rect, and our review of the record supports it, including the
fact that the claim was not preserved at trial and there is no
evidence in the record of a lack of notice. The post-conviction
court did not err in denying the claim and concluding that
petitioner did not prove inadequate or ineffective represen-
tation under either the state or federal constitution.
Twelfth Argument. Petitioner argues that appellate
counsel provided inadequate and ineffective representation
when he failed to argue that ORS 137.172(1) prevented the
trial court from announcing the sentence then changing
it after taking a recess to review the parties’ arguments
about whether ORS 137.690 was unconstitutionally cruel
and unusual as applied to petitioner. The post-conviction
court concluded that petitioner’s argument failed due to a
lack of proof of both parts of the inadequate and ineffective
analysis. On appeal, petitioner does not explain why that
ruling was legal error, and our review of the record supports
it, including the fact that the argument was unpreserved at
trial and petitioner cites no law that prevents a trial court
from changing a sentence during a sentencing hearing
before the sentence is executed. The post-conviction court
did not err in denying the claim and concluding that peti-
tioner did not prove inadequate or ineffective representation
under either the state or federal constitution.
Fifth and Seventh Arguments. Petitioner argues
that trial counsel provided inadequate and ineffective rep-
resentation when he failed to argue that Counts 5 and 6
arose from the same criminal episode and accordingly
706 Green v. Kelly
should merge. Petitioner further argues that once merged,
the convictions would not support a 25-year sentence under
ORS 137.690. The superintendent concedes that the post-
conviction court erred by not granting relief in connection
with those arguments. The state’s concession is well-taken
and we accept it. Therefore, we reverse and remand the
judgment with instructions to allow petitioner’s claims 12(8)
and (10) and to return the matter to the trial court to amend
the judgment by merging Counts 5 and 6 and resentencing
petitioner consistently with the merger of those counts.
Reversed and remanded with instructions to allow
petitioner’s claims 12(8) and (10) and to return the matter to
the trial court to amend the judgment by merging Counts 5
and 6, and for resentencing, otherwise affirmed.