Orians v. State of Oregon ( 2023 )

90
This is a nonprecedential memorandum opinion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 October 6, 2022, affirmed March 29, petition for review
denied June 29, 2023 (371 Or 284)
HARRIS MaCLEOD ORIANS,
Petitioner-Appellant,
v.
STATE OF OREGON,
Defendant-Respondent.
Washington County Circuit Court
19CV27932; A174883
Patricia A. Sullivan, Senior Judge.
Margaret Huntington argued the cause for appellant.
Also on the briefs was O’Connor Weber LLC.
Ryan Kahn, 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.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 90 (2023) 91
ORTEGA, P. J.
A jury found petitioner guilty of third-degree
sexual abuse and harassment. At trial on his petition for
post-conviction relief, he argued that his trial counsel was
constitutionally ineffective because counsel failed to pre-
pare him to testify about a prior instance of bad conduct.1
The post-conviction court concluded that petitioner failed
to establish the merits of his claim and denied petitioner’s
request for relief. On appeal, petitioner assigns error to the
post-conviction court’s decision, arguing that his trial coun-
sel was ineffective by failing to argue to the jury that peti-
tioner’s prior-bad-act trial testimony made petitioner more
trustworthy. The state contends that petitioner’s argument
has shifted and is not preserved, which petitioner disputes.
Because we agree that petitioner did not preserve his argu-
ment, which obviates the need to address its merits, we
affirm the post-conviction court’s judgment.
We begin by providing the undisputed procedural
background facts that contextualize the preservation issue.
A jury convicted petitioner of sexual abuse and harass-
ment of his housemate, T. Seeking post-conviction relief, he
asserted that his trial counsel failed to prepare him to tes-
tify about an unrelated incident between petitioner and T’s
grandfather, for which petitioner was charged and acquitted
of assault, and that trial counsel made a mistake in elicit-
ing his testimony on that issue. In a written declaration,
trial counsel asserted that counsel had advised petitioner
to testify about the incident for a strategic reason; the state
argued in its trial brief that petitioner’s testimony was not
an error but rather was a strategy to boost petitioner’s cred-
ibility. The post-conviction court concluded that petitioner
had failed to establish the merits of his claim, finding cred-
ible trial counsel’s assertion as to the strategy for offering
petitioner’s testimony.
In his assignment of error, petitioner’s main argu-
ment is that trial counsel was ineffective by failing to
reasonably execute counsel’s trial strategy. Specifically,
1
Under both the Oregon and United States Constitutions, a criminal defen-
dant is entitled to the adequate and effective assistance of counsel. Or Const,
Art I, § 11; US Const, Amend VI.
92 Orians v. State of Oregon
petitioner argues that trial counsel failed to present suffi-
cient argument to the jury during closing as to why peti-
tioner’s trial testimony regarding the incident with T’s grand-
father made petitioner more trustworthy. The state asserts
that petitioner’s argument is unpreserved because it differs
from his claim below. In response to the state’s preservation
challenge, petitioner contends that the issue on appeal is
preserved as a subset of the claim alleged in his petition
or, alternatively, was argued by implied consent as deter-
mined in Ogle v. Nooth, 365 Or 771, 782, 453 P3d 1274 (2019)
(“[U]nder ORCP 23 B, if an unpleaded issue is tried by
express or implied consent, the issue shall be treated as if it
had been pleaded.”).
After reviewing the record, we are unpersuaded by
petitioner’s arguments regarding preservation. Petitioner
first argues that his statement during the post-conviction
hearing—asserting that if offering his testimony at issue
was “such an imperative tactical decision,” trial counsel
should have articulated that theory to the jury—was a chal-
lenge to trial counsel’s strategy. However, the record shows
that petitioner made the reference to a “tactical decision” in
the context of arguing that petitioner’s “point of view”—that
trial counsel did not prepare him to testify—was the most
credible read on what happened. That is, petitioner argued
that the court should believe his primary claim that a dis-
cussion in preparation for his testimony “never took place.”
We thus conclude that petitioner’s argument on appeal is
distinct from his claim below, rather than a subset of that
claim, and was not argued before the post-conviction court.
See Mandell v. Cain, 315 Or App 471, 472, 500 P3d 762 (2021),
rev den, 369 Or 507 (2022) (a claim that “was neither alleged
in the petition nor otherwise argued below” is unpreserved).
Accordingly, we reject petitioner’s first argument.
Petitioner’s alternative argument under Ogle is
similarly unavailing. Petitioner asserts that his claim at the
hearing and on appeal is consistent with his overall claim
that trial counsel failed to advise petitioner not to testify
and directly responds to trial counsel’s “strategy” asserted
below. He further asserts that the state had an opportu-
nity to object to his argument at the hearing, but it did not.
Nonprecedential Memo Op: 325 Or App 90 (2023) 93
However, as we explained above, the record does not support
a conclusion that petitioner had challenged counsel’s execu-
tion of his strategy during the hearing, so we disagree that
the state had an opportunity to object. See State v. Haynes,
352 Or 321, 335, 284 P3d 473 (2012) (to properly preserve an
issue for review, a party’s argument must be such that “the
other part[y] and the court would understand [the argu-
ing party to be referencing] a particular legal or factual
argument[ ] and also would understand * * * the essential
contours of the full argument”). At no point did petitioner
explicitly or implicitly indicate that his reference to trial
counsel’s tactical decision was an objection to whether trial
counsel’s strategy was executed well. Therefore, petitioner’s
alternative argument offers no basis for us to conclude that
his claim is preserved under Ogle.
In sum, as the state contends, petitioner’s overall
claim on appeal—concerning whether trial counsel’s strat-
egy during his closing argument to the jury was deficient—
is separate and distinct from petitioner’s argument below.
Because we conclude that petitioner did not litigate that sep-
arate claim, his argument on appeal is unpreserved, which
obviates the need to review the merits of petitioner’s claims.
See Mandell, 315 Or at 472 (rejecting to review the mer-
its of a claim that “was neither alleged in the petition nor
otherwise argued below”); see also ORAP 5.45(1) (Appellate
courts generally will not review a claim of error that was not
preserved in the lower court.).
Affirmed.