Stubblefield v. Miller ( 2024 )

No. 605 August 28, 2024 631
This is a nonprecedential memorandum opinion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
JOHN ROY STUBBLEFIELD,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
21CV12532; A180726
J. Burdette Pratt, Judge.
Submitted August 1, 2024.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
LAGESEN, C. J.
Affirmed.
632 Stubblefield v. Miller
LAGESEN, C. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from his 2013 jury convictions for
robbery, unauthorized use of a vehicle, criminal mischief,
and other related offenses. We affirm.
First assignment of error. Petitioner assigns error
to the post-conviction court’s form of judgment, contending
that it does not comply with ORS 138.640, as construed by
the Supreme Court in Datt v. Hill, 347 Or 672, 227 P3d 714
(2014). That assignment of error is not preserved and, con-
trary to petitioner’s argument on appeal, because the post-
conviction court’s process afforded petitioner an opportunity
to raise the issue, his obligation to preserve it is not excused.
See Dudrov v. State of Oregon, 274 Or App 636, 368, 361
P3d 647 (2015), rev den, 274 Or 636 (2016) (explaining that
preservation of Datt-related issue may be excused in a sit-
uation “where the post-conviction court did not employ a
process that permitted the parties to object to the form of
judgment”).
Second assignment of error. Petitioner assigns error
to the post-conviction court’s denial of relief on his claim
that trial counsel was inadequate and ineffective in fail-
ing to move to sever the three robbery counts in Case No.
13C40022. Relying on State v. Poston, 277 Or App 137, 370
P3d 904 (2016), adh’d to on recons, 285 Or App 750, 399 P3d
488, rev den, 361 Or 886 (2017), he argues that counsel exer-
cising reasonable professional skill and judgment would
have moved to sever under ORS 132.560(1)(b) because, in
petitioner’s view, the indictment did not adequately allege
the basis for the joinder of those counts. That is not the same
claim about severance that petitioner made to the post-
conviction court, which was that trial counsel should have
moved to sever under ORS 132.560(3) on the ground that
the joinder “substantially prejudiced” petitioner. We there-
fore reject the second assignment of error as unpreserved.
Third assignment of error. Petitioner assigns error
to the post-conviction court’s denial of relief on his claim
that appellate counsel was inadequate and ineffective in not
assigning error to the trial court’s denial of his motion for a
Nonprecedential Memo Op: 334 Or App 631 (2024) 633
mistrial based on an officer’s testimony that “I read [defen-
dant] his Miranda rights. He told me he didn’t want to talk
to me without speaking to a lawyer.” The post-conviction
court denied relief on that claim, crediting counsel’s expla-
nation as to why he had not raised the issue on appeal.
Based on counsel’s explanation, the court concluded that
petitioner had not demonstrated that counsel’s performance
was deficient; the court also determined that, on the facts
of the case, petitioner had not demonstrated that he was
prejudiced by counsel’s decision not to pursue the issue on
appeal. The court’s factual determinations are supported by
the record and, on those facts, the court’s legal determina-
tions reflect no legal error. See Green v. Franke, 357 Or 301,
312, 350 P3d 188 (2015) (stating standard of review); see also
Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987) (stating
legal standard for claim of inadequate assistance of appel-
late counsel).
Fourth assignment of error. Petitioner assigns error
to the post-conviction court’s denial of relief on his claim
that trial counsel was inadequate and ineffective in not
objecting to a jury instruction that permitted the jury to
convict by a nonunanimous verdict. As petitioner acknowl-
edges, that claim of error fails under Smith v. Kelly, 318
Or App 567, 508 P3d 77 (2022), rev den, 370 Or 822 (2023).
Although petitioner argues that Smith is wrongly decided,
we are not persuaded.
Fifth assignment of error. Petitioner assigns error
to the post-conviction court’s denial of relief on his stand-
alone claim that his convictions were obtained in violation
of his constitutional rights based on the fact that the jury
was instructed that it could return nonunanimous verdicts.
To obtain relief from a particular conviction under that the-
ory, petitioner was required to prove that the jury was, in
fact, nonunanimous with respect to the conviction. Mandell
v. Miller, 326 Or App 807, 810-11, 533 P3d 815, rev den, 371
Or 476 (2023). Here, petitioner did not poll the jury and has
not otherwise presented evidence on how the jury voted on
the charges against him. Instead, petitioner asserts that
it is inferable that some of his convictions were based on
nonunanimous verdicts because petitioner was tried jointly
634 Stubblefield v. Miller
with his brother, the jury was polled as to his brother’s con-
victions, and the poll revealed that the jury was not unan-
imous on two of the robbery convictions and one of the
unlawful-use-of-a-vehicle convictions.
The inference that petitioner urges may have been
a permissible one. We need not decide the point. That is
because the inference, even if permissible, is not required.
That is, the post-conviction court was not required to be
persuaded by petitioner’s evidence that petitioner, like his
brother, had been convicted on some counts by a nonunani-
mous jury. Under these circumstances, we are bound by the
post-conviction court’s finding that it was not persuaded by
petitioner’s evidence that the jury was nonunanimous on
any or all of petitioner’s convictions. State v. Johnson, 335
Or 511, 523, 73 P3d 282 (2003) (explaining that an appel-
late court is “bound by a trial court’s ‘finding’ that a party’s
evidence is not sufficiently persuasive”). For that reason, we
reject petitioner’s fifth assignment of error.
Sixth assignment of error. In his final assignment
of error, petitioner argues that the post-conviction court
erred in denying relief on his “cumulative error” theory
of relief. Petitioner’s theory, on the whole, is that his trial
counsel performed deficiently in a range of ways that, taken
together, prejudicially affected the outcome of his criminal
trial. The Oregon courts have not recognized a “cumula-
tive error” theory of post-conviction relief. Vega-Arrieta v.
Blewett, 331 Or App 416, 428, 545 P3d 746 (2024). Even if
the theory might be a cognizable basis for relief in some cir-
cumstances, it would not be here, because petitioner did not
prove in the post-conviction court facts demonstrating that
his trial counsel performed deficiently in the ways alleged.
Affirmed.