Burdge v. Palmateer , 187 Or. App. 295 ( 2003 )

BREWER, J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. We write only to address petitioner’s claim that his trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635.¹ We conclude that petitioner has established that trial counsel’s performance was constitutionally inadequate and that petitioner was prejudiced by that deficiency. Accordingly, we reverse.

Petitioner was convicted in 1994 of five criminal charges in three separate cases. The crimes were committed in the following order: Case No. 1 involved a burglary committed on October 12, 1993; Case No. 2 involved a burglary committed on January 9, 1994; and Case No. 3 involved a burglary and sex offenses committed on January 14, 1994. The cases were not tried in the order that the charged crimes were committed. Petitioner was first tried and convicted in Case No. 2. He was then tried and convicted in Case No. 1. Finally, he was tried and convicted in Case No. 3.

At a consolidated sentencing hearing, the trial court sentenced petitioner in the order in which the crimes were committed. Thus, petitioner was first sentenced in Case No. 1; the trial court then considered petitioner’s conviction in Case No. 1 as supporting imposition of an ORS 137.635 sentence in Case No. 2. Finally, the court relied on petitioner’s convictions in Cases No. 1 and 2 to support the imposition of ORS 137.635 sentences in Case No. 3. Petitioner’s trial counsel did not object to the imposition of sentences under ORS 137.635 or assert that ORS 137.635 was inapplicable. On direct appeal, we affirmed the convictions without opinion. State v. Burdge, 137 Or App 437, 904 P2d 1093 (1995).

Thereafter, we decided State v. Allison, 143 Or App 241, 923 P2d 1224, rev den, 324 Or 487 (1996). In Allison, we examined the meaning of the phrase “previously been convicted” as used in ORS 137.635. We explained that, although there were several plausible interpretations of that phrase, the correct interpretation required that ORS 137.635 apply only to a person who has been convicted of one of the enumerated crimes before committing the crime for which the person was to be sentenced under that statute. Id. at 247-56. Under that interpretation, because all of petitioner’s crimes in this case were committed before his first conviction, he was not subject to the imposition of sentences under ORS 137.635 for any of the crimes for which he was eventually convicted. Petitioner sought post-conviction relief, asserting, among other claims, that his trial counsel provided constitutionally inadequate legal assistance by failing to argue that ORS 137.635 did not apply to him. The post-conviction court denied relief.

We review the post-conviction court’s judgment for errors of law and for evidence to support its findings. Smart v. Maass, 148 Or App 431, 434, 939 P2d 1184, rev den, 326 Or 62 (1997). To prevail on a claim of inadequate assistance of counsel, petitioner must establish by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment in representing petitioner in the criminal- proceedings that are the subject of his post-conviction case and that he suffered prejudice as a result of that failure. Stevens v. State of Oregon, 322 Or 101, 108, 902 P2d 1137 (1995); see also Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458 (1981); Chew v. State of Oregon, 121 Or App 474, 477, 855 P2d 1120, rev den, 318 Or 24 (1993).

Petitioner reasserts on appeal that trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635. Defendant responds that petitioner’s trial counsel was not inadequate because, at the time of petitioner’s sentencing, no appellate court had interpreted the statutory language “previously been convicted.” Accordingly, in defendant’s view, the meaning of the statute was not “clearly settled,” and reasonable counsel could have disagreed about whether to make an argument for the specific interpretation ultimately held to apply in Allison. See Wells v. Peterson, 315 Or 233, 236, 844 P2d 192 (1992). Further, in defendant’s view, petitioner was correctly sentenced based on an understanding of the law at the time of sentencing in light of a then-recent Supreme Court case, State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), and counsel could not have been inadequate for not raising the issue.

In Bucholz, the question was whether, when a person is sentenced at the same time for multiple convictions arising out of different criminal episodes, the offenses first sentenced become a part of the defendant’s criminal history for purposes of the subsequently sentenced convictions. The sentencing guidelines provided that “[a]n offender’s criminal history is based upon the number of * * * convictions * * * in the offender’s criminal history at the time the current crime or crimes of conviction is [sic] sentenced.” The defendant in Bucholz pleaded guilty to two unrelated felonies that had been committed and charged at separate times. He was sentenced for both offenses in the same hearing. The court first sentenced the defendant on the first committed crime. It then determined that, under the sentencing guidelines, the first conviction was a part of the defendant’s criminal history for purposes of sentencing on the second offense. We reversed the sentencing court, holding that “the legislative history demonstrates a legislative intent that convictions sentenced at the same time are present convictions that are not counted in the criminal history, irrespective of rules governing prior criminal history.” State v. Bucholz, 113 Or App 705, 707, 834 P2d 456 (1992) (emphasis in original). The Supreme Court rejected our reasoning that criminal history was not to include convictions that were currently being sentenced. It explained:

“[T]he text of the adopted amendment permits consideration of any previous conviction occurring before ‘the time the current crime * * * is sentenced.’ Read literally, the sentence for the theft was imposed before the sentence for drug delivery was imposed, albeit only a short time before. Nothing in the wording of the criminal history rule excludes consideration of the conviction for a separately occurring crime merely because the two separate crimes are sentenced on the same day and in the same session of court.”

Bucholz, 317 Or at 314 (emphasis added).

The text of ORS 137.635 provides for a sentence to be imposed under that section “[w]hen * * * a court sentences a convicted defendant who has previously been convicted” of certain felonies listed in ORS 137.635(2). Defendant contends that, in light of the Supreme Court’s interpretation of the sentencing guidelines in Bucholz, it was sound reasoning for petitioner’s trial counsel to anticipate that ORS 137.635 would be interpreted similarly, that is, that a defendant would be treated as having “previously been convicted” if the conviction occurred before sentencing. As noted in Allison, the phrasing “previously been convicted” plausibly could refer to a defendant who, at any time before sentencing, has been found guilty of a crime listed in ORS 137.635(2). 143 Or App at 247; id. at 259 (Leeson, J., concurring). Although a majority of this court ultimately rejected that interpretation in Allison, in light of Bucholz, which also involved the question of the effect of prior convictions on an enhanced sentence, we agree that trial counsel could reasonably have anticipated that, given the opportunity, the Supreme Court might interpret ORS 137.635 similarly. But that conclusion does not end our inquiry.

As defendant points out, at the time that the court sentenced petitioner, no reported appellate decision had addressed the issue decided by Allison. Although the administrative rule addressed in Bucholz involved sentencing, we held in Allison that the court’s analysis in Bucholz was not applicable to an analysis of ORS 137.635.Allison, 143 Or App at 255. The meaning of the phrase “previously been convicted” as used in ORS 137.635 was an open question. Furthermore, as we explained in Allison, the statute was susceptible to more than one plausible interpretation. The question presented in this case, then, is how reasonable counsel must go about the task of construing and arguing for the construction of a statute that has two or more plausible meanings and, thus, is ambiguous.²

Ultimately, the measure of the reasonableness of representation depends on the circumstances of the particular case. See Krummacher, 290 Or at 874 n 6. In Krummacher, the Supreme Court said that counsel must investigate the facts and inform him or herself with respect to the law “to the extent appropriate to the nature and complexity of the case.” Id. at 875. Here, reasonable trial counsel could not have disagreed that it would have been beneficial to petitioner to assert that ORS 137.635 was not applicable to him because he had not “previously been convicted” of any crime that would support the application of that statute. See Wells, 315 Or at 236. That interpretation was a plausible reading of the statute. Because the statutory phrase had not yet been construed by the courts, no judicial interpretation overlay the text of the statute to elucidate its particular meaning. There were no tactical risks to petitioner in raising the issue of the inapplicability of the statute. And, finally, the potential benefits of success were substantial, as ultimately proved to be the case for the defendant in Allison. See Layton v. Hall, 181 Or App 581, 588, 47 P3d 898 (2002) (competent decision to raise, or to forgo, an objection may involve a variety of considerations, including the likelihood of success, the benefit to the client if successful, and any countervailing detriment if unsuccessful). In consideration of all of those circumstances, we conclude that reasonably competent defense counsel was required to raise the plausible interpretation of the statute that would have assisted petitioner in his defense. See Haynes v. State of Oregon, 121 Or App 395, 398, 854 P2d 949 (1993) (failure of defense counsel to assert at trial that parole officer was not a “corrections officer” within the meaning of ORS 163.208(1) demonstrated lack of professional skill and judgment, where the term had not been construed by courts).³

Although the dissent does not expressly state what it believes reasonable counsel must do when confronted with a statute that lacks a clear meaning, it does go to considerable lengths to explore the meaning of “reasonableness.” Two of the dictionary meanings that the dissent proposes, “not [in conflict] with reason” and “within the bounds of reason,” 187 Or App at 305 (Edmonds, P. J., dissenting), are accurate but not especially illuminating. The third dictionary definition, “not absurd,” is of more questionable applicability. No case that we have located suggests that counsel’s performance is reasonable merely because it is not absurd.

The dissent apparently believes that, if a statute is ambiguous, we must, as a separate inquiry, ask whether reasonable legal minds could differ about the number of plausible interpretations of it. For example, the dissent asserts that our conclusion is flawed because

“[a]nother interpretation [of the statute] (the one reached by the Allison majority) was deemed implausible by four judges of this court. Consequently, the majority finds itself in the awkward position of holding, in effect, that the judges joining in the Allison concurrence were not reasonable attorneys because of their failure to perceive the Allison majority’s interpretation of the statute as plausible. If four judges on this court could conclude that the Allison majority’s interpretation of ORS 137.635 was not plausible, clearly reasonable trial counsel could have come to that same conclusion.”

187 Or App at 312 (Edmonds, P. J., dissenting). Later, the dissent says that, “At its bottom line, the majority’s holding leaves no room for reasonable counsel to differ as to the meaning of the words in the statute or to make reasonable judgment calls about the plausibility of a particular interpretation.” 187 Or App at 313 (Edmonds, P. J., dissenting). In the same vein, the dissent urges:

“When there is more than one reasonable interpretation of a statute and reasonable minds could differ about the number of plausible interpretations of the statute, it is inconsistent with the concept of ‘reasonableness’ to read into the constitution a requirement that a reasonable attorney must perceive all plausible interpretations of a statute and advance the one most favorable to his client in order to furnish adequate assistance of counsel.”

187 Or App at 315 (Edmonds, P. J., dissenting).

With respect, a separate inquiry into whether reasonable minds could differ about the number of plausible interpretations of an ambiguous statute, or whether judges who view certain interpretations as implausible are reasonable attorneys, leads to confusion, not clarity. The split in the Allison decision reflected a disagreement over which of three possible constructions of ORS 137.635 was correct. It is hardly surprising that a statute whose correct meaning is uncertain would produce separate opinions from this court, including one or more that reject even the plausibility of opposing interpretations.

We do not take issue with the dissent’s view that “the concept of reasonableness does not by definition necessarily require a ‘reasonable attorney5 to anticipate every alternative meaning of a statute.” 187 Or App at 305 (Edmonds, P. J., dissenting). Of course, reasonable attorneys can, and often do, differ as to which possible meaning of a statute is correct or, for that matter, how many plausible interpretations exist. However, lawyers representing criminal defendants, unlike judges, are expected to be advocates, not neutrals; they must undertake to discern and assert plausible interpretations of ambiguous statutes that would benefit their clients. When, as here, a statute is ambiguous, there is all the more reason — not less — for counsel to recognize an interpretation that favors his or her client. Any other view would produce a rule that, if a statute is ambiguous, reasonable counsel has little responsibility to discern, among its possible meanings, one that the courts might conclude is correct and that would favor his or her client. Such a rule cannot be correct. Reasonable counsel’s responsibility cannot logically be fulfilled merely by stopping at the first possible construction that occurs to counsel, especially if it favors the adverse party. Nor is it fulfilled by asserting that four concurring judges in Allison rejected the majority’s construction of the statute. Regardless of the reasonableness of that dispute among the judges of this court, as far as the law is concerned the Allison majority’s construction of the statute is more than plausible; it is correct.

We take issue with the dissent’s view that our conclusion sets the performance bar higher than the constitution demands by making post-conviction relief available whenever counsel fails to assert the single correct interpretation of an ambiguous statute. 187 Or App at 315 (Edmonds, P. J., dissenting). The issue is not whether petitioner’s counsel was required to divine the correct meaning of an ambiguous statute but, rather, whether he was required to discern and advance a plausible alternative meaning of the statute that would likely benefit his client. We conclude that he was. See Layton, 181 Or App at 588-89 (reasonable defense counsel is obliged not only to advance legal positions that are certain to succeed but also those that are less certain yet are reasonably promising). In this case, petitioner’s counsel failed to discern and advance a construction of ORS 137.635(1) that was both plausible and correct and that would have benefitted petitioner.

Because that construction was correct, petitioner also was prejudiced. See Layton, 181 Or App at 589-90. Accordingly, petitioner is entitled to post-conviction relief.

Reversed and remanded for entry of judgment granting post-conviction relief.

1 ORS 137.635(1) provides:

“When, in the case of a felony described in subsection (2) of this section, a court sentences a convicted defendant who has previously been convicted of any felony designated in subsection (2) of this section, the sentence shall not be an indeterminate sentence to which the defendant otherwise would be subject under ORS 137.120, but, unless it imposes a death penalty under ORS'163.105, the court shall impose a determinate sentence, the length of which the court shall determine, to the custody of the Department of Corrections. Any mandatory minimum sentence otherwise provided by law shall apply. The sentence shall not exceed the maximum sentence otherwise provided by law in such cases. The convicted defendant who is subject to this section shall not be eligible for probation. The convicted defendant shall serve the entire sentence imposed by the court and shall not, during the service of such a sentence, be eligible for parole or any form of temporary leave from custody. The person shall not be eligible for any reduction in sentence pursuant to ORS 421.120 or for any reduction in term of incarceration pursuant to ORS 421.121.”

2 An ambiguous statute by definition is one that has, at the first level of statutory construction, two or more “reasonable,” that is, plausible, interpretations. State v. Hval, 174 Or App 164, 168-69, 25 P3d 958 (2001).

3 In Haynes, we distinguished Wells, in which the court held that, because our decisions on the legal interpretation of the mandatory minimum sentencing statutes had left the law “not clearly settled,” reasonable counsel could have “disagreed” about whether to raise the legal argument that the petitioner’s attorney did not make. Haynes, 121 Or App at 399; Wells, 315 Or at 236.