Ibabao v. Reyes ( 2024 )

676 August 28, 2024 No. 619
This is a nonprecedential memorandum opinion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
JAMIR ELIJAH IBABAO,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
16CV32370; A180091
J. Burdette Pratt, Senior Judge.
Submitted August 1, 2024.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 676 (2024) 677
KAMINS, J.
Petitioner, who was convicted of multiple robbery,
burglary, and kidnapping offenses, appeals a judgment
denying post-conviction relief. On appeal, he contends that
the post-conviction court (PCR) erred because his trial coun-
sel was constitutionally ineffective for failing to object to
portions of victims’ testimony and the trial court’s nonunan-
imous verdict instruction. We affirm.
We review the PCR 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). To be
entitled to post-conviction relief under the state and federal
constitutions, petitioner must demonstrate both that coun-
sel failed to exercise reasonable professional skill and judg-
ment and that petitioner suffered prejudice as a result. See
McMullin v. Amsberry, 310 Or App 542, 551, 485 P3d 278
(2021) (explaining that the state and federal tests for review-
ing inadequate/ineffective assistance of counsel claims are
“functionally equivalent”).
Petitioner was found guilty of robbery, burglary, and
kidnapping after he and three accomplices, Sparks, Rose,
and Lunetta, robbed and took a gun safe from a home. At
the time of the robbery, four people were in the home. Sparks
and Rose pleaded guilty and testified against petitioner and
Lunetta. During the trial, two of the victims testified that
they were grateful and appreciative for the codefendants’
testimony; and all four victims testified to the hardships
they suffered as a result of the robbery. Ultimately, a unan-
imous jury found petitioner guilty of robbery and burglary,
and 11 of the 12 jurors found him guilty of kidnapping.
Petitioner’s 2018 petition for PCR was denied.
However, we remanded that decision after petitioner and
the superintendent jointly moved to vacate the judgment
to allow the PCR court to reconsider petitioner’s motion to
include claims under Church v. Gladden, 244 Or 308, 417
P2d 993 (1966). In petitioner’s fourth amended petition
and as relevant to this appeal, he argued before the PCR
court that counsel exercising reasonable professional skill
678 Ibabao v. Reyes
and judgment would have objected to the victims’ testimony
about their gratitude to the two accomplices who pleaded
guilty and the hardships the robbery caused and would also
have objected to the nonunanimous verdict instruction. The
PCR court denied all of petitioner’s claims, and petitioner
again appeals.
As to the assignments of error relating to the victims’
testimony, petitioner contends that he suffered prejudice,
because the testimony “could have led the jury to decide
the case on an improper basis.” We disagree. Even assum-
ing that trial counsel was deficient for not objecting to the
victims’ testimony—an issue we do not reach—petitioner
has not proved prejudice. In light of trial counsel’s theory
of the case—that petitioner was not one of the four masked
robbers—the victims’ testimony about the lasting emotional
effects of the robbery or gratitude for the accomplices’ tes-
timony had little tendency to affect the verdict. Trial coun-
sel’s strategy focused on undermining the credibility of the
accomplice-witnesses who placed petitioner in the home
during the robbery by highlighting their inconsistent testi-
mony. And trial counsel conceded that the home invasion did
in fact happen and is “everyone’s worst nightmare.” Given
those circumstances and the evidence presented to the jury,
including that petitioner helped open the stolen gun safe,
possessed a gun that was identified as the one used in the
robbery, and made self-incriminating phone calls while in
custody, we are unpersuaded that there is “more than [a]
mere possibility” that counsel’s failure to object to the vic-
tims’ testimony caused petitioner prejudice. Green, 357 Or
at 322.
Petitioner also argues that the “cumulative effect of
the errors” prejudiced him. However, Oregon courts “have
not recognized a cumulative error theory of relief” and, as
explained, the errors petitioner identifies did not prejudice
the outcome individually or when considered collectively.
Vega-Arrieta v. Blewett, 331 Or App 416, 428, 545 P3d 746
(2024).
In his last assignment of error, petitioner contends
that the PCR court erred in denying relief on petitioner’s
claim that his trial counsel was inadequate and ineffective
Nonprecedential Memo Op: 334 Or App 676 (2024) 679
in not objecting to the nonunanimous verdict instruction.
Petitioner was found guilty by a unanimous jury on his rob-
bery and burglary charges, but he was found guilty of his
kidnapping charge by an 11-1 verdict.1 Petitioner’s convic-
tion occurred seven years before Ramos v. Louisiana, 590
US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020). Petitioner con-
cedes that his argument is foreclosed by Smith v. Kelly, 318
Or App 567, 508 P3d 77 (2022), rev den, 370 Or 822 (2023);
however, he contends that Smith was “incorrectly decided”
and “raise[s] the argument in the case that the Oregon
Supreme Court disagrees or resolves the issue differently.”
Because Smith remains controlling, trial counsel did not act
unreasonably in not objecting to the trial court’s instruc-
tion that a jury verdict need not be unanimous. Perkins v.
Fhuere, 332 Or App 290, 301, 549 P3d 25 (2024).
Affirmed.
1
We reversed petitioner’s kidnapping conviction on direct appeal, because
the record did “not contain sufficient evidence to establish the asportation ele-
ment of kidnapping.” State v. Ibabao, 270 Or App 508, 348 P3d 336 (2015).