Stuckrath v. Brown ( 2024 )

No. 284 May 1, 2024 403
This is a nonprecedential memorandum opinion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
KRISTIN STUCKRATH,
Petitioner-Appellant,
v.
NICHOLE BROWN,
Superintendent,
Coffee Creek Correctional Institution,
Defendant-Respondent.
Washington County Circuit Court
19CV48192; A176159
Patricia A. Sullivan, Judge.
Submitted May 23, 2023.
Margaret Huntington and O’Connor Weber LLC filed the
opening brief for appellant. Kristin Stuckrath filed the sup-
plemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Hadlock, Senior Judge.
TOOKEY, P. J.
Affirmed.
404 Stuckrath v. Brown
TOOKEY, P. J.
Petitioner appeals a judgment denying her petition
for post-conviction relief from convictions for five counts of
using a child in display of sexually explicit conduct, ORS
163.670. She raises a single assignment of error through
counsel and various pro se assignments of error. Accepting
the post-conviction court’s supported implicit and explicit
factual findings and reviewing for legal error, Green v.
Franke, 357 Or 301, 312, 350 P3d 188 (2015), we affirm.
In the assignment of error that she raises through
counsel, petitioner contends that the post-conviction court
erred “by denying relief on petitioner’s claim that her con-
stitutional rights were violated when trial counsel conceded
petitioner’s guilt without her consent.” In the post-conviction
court, that claim—which was petitioner’s third claim for
relief—was brought as a “standalone constitutional claim”
for violation of her “right to autonomy under the Sixth
Amendment to the United States Constitution” as inter-
preted in McCoy v. Louisiana, 584 US 414, 138 S Ct 1500,
200 L Ed 2d 821 (2018).
As an initial matter, to the extent that petitioner is
arguing, on appeal, that her third claim for relief should be
considered as an ineffective assistance of counsel claim, that
was not the basis for her third claim for relief in her amended
petition for post-conviction relief, which was brought as a
standalone constitutional claim, and she did not preserve
such an ineffective assistance claim in the post-conviction
court. State v. Reynolds, 250 Or App 516, 519, 280 P3d 1046,
rev den, 352 Or 666 (2012) (“Generally, an appellate court
will not consider an unpreserved issue on appeal.”); Bowen
v. Johnson, 166 Or App 89, 92, 999 P2d 1159, rev den, 330 Or
553 (2000) (“[T]he allegations in the petition frame—indeed,
limit—the issues for determination by the post-conviction
court.”). In particular, we note that, during argument in
the post-conviction court, petitioner emphasized that her
third claim for relief was a “standalone constitutional claim”
based on McCoy.
In any event, on appeal, regarding her third claim
for relief, petitioner contends that the post-conviction court
Nonprecedential Memo Op: 332 Or App 403 (2024) 405
engaged in the “wrong factual inquiry” under McCoy and
Thompson v. Cain, 295 Or App 433, 433 P3d 772 (2018),
when it denied relief, notwithstanding that the trial court
expressly found that “[t]he record in this case does not sup-
port [p]etitioner’s claim that she told Trial Counsel not to
concede guilt.” Relying on Thompson, petitioner argues that
we should remand for the post-conviction court to “engage in
the proper factual inquiry.”
Petitioner’s reliance on our disposition in Thompson
is misplaced. It is true that, in Thompson, we remanded for
the post-conviction court to “evaluate whether trial counsel’s
strategy to concede sexual contact between defendant and
victim during closing met constitutional standards, as clari-
fied by McCoy and this opinion.” 295 Or at 443. But McCoy—
which we characterized in Thompson as “clarify[ying] coun-
sel’s obligations with regard to a concession of guilt”—was
decided while the appeal in Thompson was pending. Thus,
the post-conviction court in Thompson did not have the ben-
efit of the clarification of the law provided by McCoy when
it reached the conclusion that it did and made the findings
that it did to support that conclusion.
This case is different. Here, petitioner points to no
“clarification” of the law after the post-conviction court’s
decision, nor does the record indicate that the post-conviction
court applied the wrong legal standard when it rejected
petitioner’s third claim for relief. Cf. Green, 357 Or at 323(“Because the post-conviction court appears to have applied
the wrong legal standard for prejudice, it is inappropriate
to affirm the post-conviction court’s judgment on prejudice
grounds on the record before us.”). In this case, remand-
ing for further factual findings, as petitioner asks us to do,
would be inconsistent with our standard of review, under
which, subject to certain limitations that are not applica-
ble here, we “presume that a trial court implicitly resolves
factual disputes consistently with its ultimate conclusion,”
Pereida-Alba v. Coursey, 356 Or 654, 670-71, 342 P3d 70
(2015), including accepting “reasonable inferences and rea-
sonable credibility choices that the trial court could have
made,” M. A. B. v. Buell, 308 Or App 98, 103, 479 P3d 1087
(2020) (internal quotation marks omitted).
406 Stuckrath v. Brown
Given that standard of review, we reject petitioner’s
argument that the post-conviction court did not make the
factual findings required to support its denial of petitioner’s
third claim for relief.
We next turn to petitioner’s pro se assignments of
error. Petitioner contends that the post-conviction court
erred in denying her first, second, and fourth claims for
relief, in which she asserted that trial counsel provided
inadequate assistance by “fail[ing] to properly advise” her
of the terms of the state plea offer, by failing to advise
her of the likelihood that she would receive a mandatory
300-month sentence if she was found guilty of more than one
count, and by failing to explain the legal issues of “ ‘simulat-
ing’ a sexual act, and the caselaw that outlines the criminal
culpability of simulating a sexual act with a child for the
viewing purposes of another, that would be presented to the
court at her trial.”
Those arguments are also foreclosed by the post-
conviction court’s factual findings—among them, that
“[p]etitioner chose to take her chances at trial” and “did
not make th[at] choice because of incorrect advice by Trial
Counsel,” that “[p]etitioner is not credible that she was
unaware of the mandatory minimum sentence or that Trial
Counsel failed to discuss it with her,” and that “[p]etitioner’s
claim that she did not understand the law regarding sim-
ulating sexual activity when she waived jury and that had
she understood this she would have proceeded to a jury trial
is not credible, or plausible”—which are binding on appeal.
Finally, petitioner raises an unpreserved pro se
argument, viz., that she was denied effective assistance of
counsel because she was not advised about her right to a
unanimous jury verdict, which led her to waive her right
to a jury and proceed with a bench trial. As noted, that
argument is unpreserved. But even if it was preserved, it
is foreclosed by Smith v. Kelly, 318 Or App 567, 508 P3d 77
(2022) (counsel was not constitutionally deficient for failing
to advise his client that Apodaca v. Oregon, 406 US 404, 92
S Ct 1628, 32 L Ed 2d 184 (1972), could be overruled).
Affirmed.