Wehage v. Reyes ( 2023 )

No. 640 December 6, 2023 417
This is a nonprecedential memorandum opinion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
JOSEPH WEHAGE,
Petitioner-Appellant
v.
ERIN REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
18CV02186; A178341
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 Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Tookey, Judge, and
Kamins, Judge.
TOOKEY, J.
Denial of claim for post-conviction relief regarding
nonunanimous jury verdicts on Counts 1 and 5 reversed and
remanded; otherwise affirmed.
418 Wehage v. Reyes
TOOKEY, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief, raising two assignments of error.
In his first assignment of error, petitioner contends that the
post-conviction court erred in denying Claim 2, in which
petitioner asserted that his trial counsel was inadequate
under Article I, section 11, of the Oregon Constitution and
ineffective under the Sixth and Fourteenth Amendments
to the United States Constitution. In his second assign-
ment of error, petitioner contends that the post-conviction
court erred in denying Claim 5, in which petitioner sought
reversal of his nonunanimous jury verdicts under Ramos v.
Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583(2020). Accepting the post-conviction court’s supported
implicit and explicit factual findings, and reviewing for
legal error, see Green v. Franke, 357 Or 301, 312, 350 P3d
188 (2015), we reverse and remand in part, and otherwise
affirm.
The state charged petitioner with eleven counts of
sodomy and sexual abuse. A jury convicted petitioner unan-
imously on nine counts (Counts 2 through 4 and Counts 6
through 11) and nonunanimously on two counts (Counts 1
and 5). Petitioner then appealed to this court, we affirmed
without opinion, and we entered judgment. Petitioner then
brought five claims for post-conviction relief, including, as
relevant on appeal, Claims 2 and 5. In Claim 2, petitioner
alleged inadequate and ineffective assistance of counsel,
because petitioner’s trial counsel did not offer evidence of
petitioner’s physical disabilities at trial. The post-conviction
court denied relief as to Claim 2, because it determined that
petitioner failed to establish that trial counsel’s conduct
fell below the reasonable professional standard. In Claim
5, petitioner argued for reversal of his two nonunanimous
jury convictions on Counts 1 and 5. The post-conviction
court denied relief as to Claim 5, because it determined that
case law did not support retroactive relief under the Post-
Conviction Hearing Act and Ramos. Petitioner now appeals
the post-conviction court’s denial of Claim 2 and Claim 5.
Petitioner’s First Assignment of Error. As noted,
petitioner assigns error to the post-conviction court’s denial
Nonprecedential Memo Op: 329 Or App 417 (2023) 419
of Claim 2. In Claim 2, petitioner alleged violations of his
constitutional rights under Article I, section 11, and the
Sixth and Fourteenth Amendments on the basis that trial
counsel was inadequate and ineffective “for failing to pres-
ent evidence of petitioner’s physical disabilities,” including
testimony from petitioner’s wife. See Smith v. Kelly, 318
Or App 567, 568-69, 508 P3d 77 (2022), rev den, 370 Or 822,
525 P3d 860 (2023) (stating standards for inadequate and
ineffective assistance of counsel claims under the state and
federal constitutions).
At trial, the victim, who was 11 or 12 years old
at the time of petitioner’s conduct, used the verb “throw”
for the first time when describing petitioner’s conduct. In
petitioner’s view, petitioner’s trial counsel should have pre-
sented evidence of petitioner’s physical disabilities, which
would have contradicted that testimony from the victim.
The post-conviction court explained that the only
way to counter the victim’s “throwing” testimony would
have been for petitioner or his wife to testify as to petition-
er’s physical disabilities, and that petitioner had chosen not
to testify. Regarding petitioner’s wife, the post-conviction
court determined that petitioner’s trial counsel made the
strategic decision not to call petitioner’s wife as a witness,
and that that decision was reasonable under the circum-
stances: Calling petitioner’s wife could have opened the
door to other issues that counsel “did not want to get into.”
Moreover, given information in petitioner’s medical records,
which counsel had access to, reasonable counsel could con-
clude that petitioner’s wife’s description of the extent of
petitioner’s physical disabilities was not credible, and could
decline to call her as a witness for that reason. We conclude
that the post-conviction court did not err in determining
that counsel’s decision not to call petitioner’s wife was a rea-
sonable, strategic decision under the circumstances.
On appeal, petitioner now contends his trial coun-
sel should have found another way to introduce petitioner’s
medical records. That argument was not preserved, but, in
any event, we conclude that trial counsel was not inadequate
or ineffective for failing to introduce the medical records. In
view of the post-conviction court’s finding that the only way
420 Wehage v. Reyes
for petitioner to rebut the “throwing” testimony was for peti-
tioner or his wife to testify, we do not understand petition-
er’s medical records to support his argument.
Thus, we reject petitioner’s challenge to the post-
conviction court’s denial of petitioner’s Claim 2 for inade-
quate and ineffective assistance of counsel.
Petitioner’s Second Assignment of Error. Petitioner
assigns error to the post-conviction court’s denial of Claim
5 for retroactive relief under Ramos and reversal of petition-
er’s two nonunanimous jury convictions. The state concedes
that, in light of Watkins v. Ackley, 370 Or 604, 523 P3d 86
(2022), the post-conviction court erred.1 We agree and accept
that concession.
In Ramos, the United States Supreme Court held
that the Sixth and Fourteenth Amendments require jury
unanimity for a conviction in state court. 590 US at 1397. In
Watkins, the Oregon Supreme Court held that Ramos applies
retroactively in a post-conviction proceeding under Oregon’s
Post-Conviction Hearing Act, ORS 138.510 to 138.680. 370
Or at 607. We therefore reverse the post-conviction court’s
denial of petitioner’s Claim 5, and remand for further
proceedings.
Denial of claim for post-conviction relief regarding
nonunanimous jury verdicts on Counts 1 and 5 reversed and
remanded; otherwise affirmed.
1
We note that Watkins was decided after the post-conviction court’s denial
of petitioner’s claims.