Debone v. Cain ( 2024 )

512 October 16, 2024 No. 734
This is a nonprecedential memorandum opinion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
CODY DEBONE,
Petitioner-Appellant,
v.
Brad CAIN,
Acting Superintendent,
Warner Creek Correctional Facility,
Defendant-Respondent.
Lake County Circuit Court
21CV03672; A177451
Stephen P. Forte, Judge.
Submitted December 13, 2023.
Margaret Huntington and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert A. Koch, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Joyce, Judge.
LAGESEN, C. J.
Reversed and remanded.
Nonprecedential Memo Op: 335 Or App 512 (2024) 513
LAGESEN, C. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from his conviction for criminal
mistreatment of his four-year-old son pursuant to a guilty
plea. Petitioner contends that his trial counsel was inade-
quate and ineffective, in violation of his state and federal
constitutional rights, by failing to advise him of the defense
provided by ORS 161.205(1)(a), which allows for a parent to
use reasonable physical force to discipline a child. The post-
conviction court denied relief, concluding that petitioner
had not demonstrated that he was prejudiced by counsel’s
alleged failure to advise about the defense. Because the
court applied an incorrect legal standard in determining
that petitioner was not prejudiced, we reverse and remand.
We review the post-conviction court’s judgment for
legal error and accept the court’s supported implicit and
explicit factual findings. Green v. Franke, 357 Or 301, 312,
350 P3d 188 (2015). In this appeal, the facts are procedural,
making our focus whether the post-conviction court’s appli-
cation of the law was correct.
The standards for post-conviction relief under both
the state and federal constitutions are “functionally equiv-
alent”: a petitioner must show that defense counsel per-
formed deficiently and that the petitioner suffered prejudice
as a result of the deficient representation. Smith v. Kelly, 318
Or App 567, 568-69, 508 P3d 77 (2022), rev den, 370 Or 822(2023). To prove prejudice where, as here, a petitioner alleges
that counsel’s inadequate advice affected the petitioner’s
decision to plead guilty, the petitioner must establish by a
preponderance of the evidence that (1) counsel’s advice was
deficient, and (2) but for counsel’s deficient advice, the peti-
tioner would not have pleaded and would insisted on a trial.
Peeler v. Reyes, 328 Or App 110, 115, 537 P3d 206 (2023),
rev den, 371 Or 825 (2024); see also Martin v. Kelly, 328
Or App 98, 107-08, 537 P3d 200 (2023) (prejudice inquiry
in this context requires post-conviction court to determine
how the deficiency in performance affected the petitioner’s
decision to enter a plea and forgo the right to a trial).
As noted, petitioner contends that he is entitled to
relief based on his lawyer’s alleged failure to advise him that
514 Debone v. Cain
ORS 161.205(1)(a) offered a potential defense to the charge.
There is conflicting evidence on that point, and the post-
conviction court never resolved the dispute because it deter-
mined that petitioner had not shown that he was prejudiced
by counsel’s alleged failure to advise petitioner regarding the
defense. As petitioner correctly observes, the court’s preju-
dice analysis did not address the specific inquiry required to
ascertain prejudice in this context: whether petitioner would
have exercised his right to a jury trial if he had been prop-
erly advised about the defense. Peeler, 328 Or App at 115;
Martin, 328 Or App at 107-08. Rather than focusing on the
potential effect of counsel’s allegedly deficient advice on peti-
tioner’s own decision-making process, the court’s analysis
focused more broadly on the general question of whether the
alleged deficiency tended to affect the outcome of the case.
The superintendent observes that “the court’s
speaking ruling is not a model of clarity” but urges us to
conclude that it applied the correct legal standard. Having
reviewed the record, we are unable to reach that conclusion
for the reasons stated above. In the alternative, the superin-
tendent argues that it is appropriate to remand for the court
to assess prejudice under the correct legal standard and,
if necessary, “resolve the factual dispute on whether trial
counsel advised petitioner about the defense of justifiable
physical force.” We agree with that proposed disposition.
Reversed and remanded.