Issac v. Kelly ( 2023 )

437
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 10; reversed and remanded as to Counts 1, 3, 4, 7, 8, 9, 15,
and 16, otherwise affirmed April 19, petition for review denied
August 31, 2023 (371 Or 332)
MICHAEL ALEX ISSAC,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
18CV19090; A176533
Patricia A. Sullivan, Senior Judge.
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, Chief Judge, and Kamins, Judge, and
Armstrong, Senior Judge.
KAMINS, J.
Reversed and remanded as to Counts 1, 3, 4, 7, 8, 9, 15,
and 16; otherwise affirmed.
438 Issac v. Kelly
KAMINS, J.
Petitioner appeals from a general judgment grant-
ing one of his claims for post-conviction relief but denying
the remainder. He raises five assignments of error, four
of which assert that trial counsel was inadequate under
Article I, section 11, of the Oregon Constitution and inef-
fective under the Sixth and Fourteenth Amendments to the
United States Constitution. The fifth assignment of error
alleges that his convictions by nonunanimous verdicts vio-
lated the federal constitution under Ramos v. Louisiana, 590
US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We reverse
and remand in part, and otherwise affirm.
The state concedes, and we agree, that under
Watkins v. Ackley, 370 Or 604, 523 P3d 86 (2022), we must
reverse and remand for further proceedings concerning
petitioner’s convictions for Counts 1, 3, 4, 7, 8, 9, 15, and 16,
because the jury verdicts were not unanimous. Petitioner’s
third and fourth assignments of error are rendered moot,
because they asserted Ramos-related claims of inadequate
assistance. See Huggett v. Kelly, 370 Or 645, 648 n 3, 523
P3d 84 (2022) (determining that granting relief on the peti-
tioner’s standalone Ramos claim rendered moot his claims
that trial counsel was ineffective by failing to object to the
nonunanimous guilty verdicts and by failing to request a
jury concurrence instruction).
Petitioner’s first two assignments of error raise
challenges to trial counsel’s performance which could poten-
tially implicate his unanimous verdicts, and so we turn to
address them. In his first assignment of error, petitioner
argues that trial counsel was inadequate and ineffective in
failing to object to leading questions by the prosecutor. We
reject that claim, because counsel’s strategic choice was a
reasonable one and petitioner has not established prejudice.
See Behrle v. Taylor, 307 Or App 126, 132-33, 476 P3d 475
(2020), rev den, 367 Or 709 (2021) (absent evidence that the
witness might have said something more advantageous to
the petitioner or that had a tendency to affect the verdict,
the petitioner did not prove that he was prejudiced by trial
counsel’s failure to object to leading questions).
Nonprecedential Memo Op: 325 Or App 437 (2023) 439
Petitioner’s second assignment of error asserts that
trial counsel was inadequate and ineffective in failing to
properly argue for a judgment of acquittal specific to the
witness-tampering charges. Because the evidence at trial
was sufficient to support a finding that petitioner engaged
in witness tampering as alleged, petitioner has not demon-
strated that there is a likelihood that a different argument
would have led to an acquittal. See Torres v. Persson, 305 Or
App 466, 472 n 4, 471 P3d 119 (2020), rev den, 367 Or 535(2021) (where evidence was sufficient such that any motion
for judgment of acquittal would have been denied, the peti-
tioner was not prejudiced by the failure to make such a
motion).
Reversed and remanded as to Counts 1, 3, 4, 7, 8, 9,
15, and 16; otherwise affirmed.