Lee v. Reyes ( 2023 )

340 November 29, 2023 No. 629
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
RONNIE LEE,
aka Ronnie Lee, Jr.,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
20CV19913; A179419
J. Burdette Pratt, Senior Judge.
Submitted October 31, 2023.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Adam Holbrook, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Tookey, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 340 (2023) 341
KAMINS, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief (PCR). He assigns error to the post-
conviction court’s determination that his trial counsel was
not constitutionally ineffective for failing to call petitioner’s
sister as a witness and failing to advise petitioner that he
could not be convicted unless the jury reached a unanimous
verdict, rendering his waiver of a jury trial not knowing or
voluntary. On appeal, we review the post-conviction court’s
denial of relief for legal error and accept the court’s implicit
and explicit factual findings, provided that there is evidence
to support them. Green v. Franke, 357 Or 301, 312, 350 P3d
188 (2015). We affirm.
Petitioner was convicted of multiple counts of kid-
napping, rape, sodomy, assault, and unlawful sexual pen-
etration relating to a six-week period where he held the
victim, K, against her will. He now contends that his trial
counsel’s failure to call his sister as a witness amounted to
inadequate and ineffective assistance of counsel under the
Oregon and federal constitutions. In support of that claim,
petitioner submitted a declaration from his sister describing
a several-day period when she and her husband visited peti-
tioner and “never saw anyone that appeared to have been
beaten, in disarray, or held captive.” The PCR court observed
that the sister’s “carefully crafted” declaration “states what
she did not see but makes no mention of whether or not
she had any contact with” K, and her declaration actually
“substantiates much of the state’s case against [p]etitioner.”
Thus, the PCR court concluded that trial counsel was not
unreasonable in deciding not to call her as a witness.
We agree. The jury heard substantial evidence
about the efforts taken to keep K hidden and silent when
anyone visited the house, and thus, petitioner’s sister’s dec-
laration would not have materially undermined the state’s
case. Petitioner contends that the declaration would have
damaged K’s credibility, but that conclusion is far from cer-
tain on this record. Therefore, trial counsel could have rea-
sonably determined that the risks of presenting this testi-
mony outweighed the benefits.
342 Lee v. Reyes
We also reject petitioner’s remaining claims relat-
ing to trial counsel’s failure to advise regarding the Sixth
Amendment’s jury unanimity requirement claims for relief,
which, as petitioner acknowledges, are foreclosed. See Smith
v. Kelly, 318 Or App 567, 569, 508 P3d 77 (2022), rev den, 370
Or 822 (2023) (holding that trial counsel do not perform defi-
ciently by failing to advise regarding the unanimity issue
before Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206
L Ed 2d 583 (2020), was litigated).
Affirmed.