DocketNumber: 11C14164; A154846
Citation Numbers: 282 Or. App. 114, 386 P.3d 224
Judges: Garrett, Lagesen, Schuman
Filed Date: 11/9/2016
Status: Precedential
Modified Date: 9/9/2022
Petitioner appeals from a judgment denying his petition for post-conviction relief. On review for legal error, accepting as true the trial court’s supported factual findings, Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015), we affirm.
Petitioner seeks relief from his conviction for second-degree assault, ORS lGS.lTSClXb).
Petitioner now contends that he is entitled to post-conviction relief from the felony assault conviction
The post-conviction court denied relief. It found that petitioner had not demonstrated any deficiency in counsel’s performance for failing to pursue that strategy. It also found, among other things, that petitioner would not have succeeded in that strategy because, had petitioner attempted it, the prosecutor likely would have obtained a dismissal of the misdemeanor charge to pursue the felony charge:
“The DA would have told the court of his intent to charge the felony assault and would have just dismissed rather*118 than be barred from that felony. It is also highly unlikely that a judge would have allowed the assault IV plea if it barred the felony. * * * The court has discretion to refuse the plea or just set it all over until the DA has time to indict.”
Based on that finding, the post-conviction court concluded that petitioner had not established that he was prejudiced by any deficiency in counsel’s performance.
Petitioner challenges that determination on appeal, arguing that the post-conviction court erred both in determining that counsel was not deficient for implementing petitioner’s strategy of pleading guilty to the assault while it was a misdemeanor, and in determining that trial counsel’s deficient performance did not prejudice petitioner. See Pereida-lba v. Coursey, 356 Or 654, 661-62, 342 P3d 70 (2015) (explaining that the two elements of claim for inadequate assistance of counsel under Article I, section 11, are deficient performance and prejudice); Strickland v. Washington, 466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (holding that the two elements of claim for ineffective assistance of counsel under the Sixth Amendment are deficient performance and prejudice); see also Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487 (2014) (concluding that the elements of an Article I, section 11, claim of inadequate assistance of counsel are “functionally equivalent” to the elements of a Sixth Amendment claim of ineffective assistance of counsel). In response, defendant, Superintendent of the Oregon State Penitentiary (the superintendent), contends that the post-conviction court’s decision was correct in both respects.
The parties’ arguments on appeal center primarily on the first and second parts of that required showing: Whether there is a reasonable probability that petitioner, in fact, would have pleaded guilty to the misdemeanor charge and, if so, whether there is a reasonable probability that the trial court would have accepted the plea. As it turns out, the latter point is dispositive of this appeal. As to that point, petitioner does not appear to dispute the post-conviction court’s
Rather, petitioner’s argument as to whether the trial court likely would have accepted a plea, as we understand it, is a legal one. Petitioner contends that, if he had sought to plead guilty to the assault while it was charged as a misdemeanor, the trial court would have been compelled to accept his plea, regardless of whether the prosecutor indicated that she wanted to dismiss the charge to pursue a felony charge. In support of that argument, petitioner points to case law recognizing that a criminal defendant generally has a right to plead guilty to a charged offense. See, e.g., State v. Wagner, 305 Or 115, 130-31, 752 P2d 1136 (1988), vac’d on other grounds sub nom Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989) (noting that criminal defendants generally have the right to plead guilty to charged offenses). Petitioner also points to ORS 135.335.
In response, the superintendent does not dispute that, as a general matter, a criminal defendant has an unqualified right to plead guilty to pending charges, subject to the requirements that a plea be knowing, voluntary, and supported by a factual basis. However, the superintendent points out that ORS 135.755 gives a trial court the express authority to dismiss pending charges when doing so is “in furtherance of justice”: “The court may, either of its own motion or upon application of the district attorney, and in furtherance of justice, order the proceeding to be dismissed.” ORS 135.755. Thus, the superintendent contends, a trial court presented simultaneously with a defendant’s request to plead guilty and a prosecutor’s motion to dismiss the charges—which is what the post-conviction court found would have happened if trial counsel had pursued petitioner’s strategy—has the discretionary authority under ORS 135.755 to dismiss the charges if that is what justice requires. Accordingly, the superintendent argues, the post-conviction court did not err in its conclusion that petitioner likely would not have succeeded in having the court accept his guilty plea, and its corresponding conclusion that petitioner had not demonstrated that he was prejudiced by the alleged deficiencies in trial counsel’s performance.
We agree with the superintendent. We have been unable to locate authority for the proposition—either in Oregon or elsewhere—that a defendant has an unqualified
Thus, contrary to petitioner’s argument, ORS 135.755 would have allowed the trial court to dismiss the misdemeanor charge against petitioner, rather than accept his plea and, beyond that, the evidence supports the trial court’s factual finding that that likely is what would have happened if petitioner attempted to plead guilty to the charge when it was a misdemeanor. Consequently, the post-conviction court correctly concluded that petitioner did not demonstrate a reasonable probability that his plea would have been accepted had his trial counsel pursued petitioner’s strategy and that, therefore, petitioner failed to demonstrate prejudice under the Lafler/Frye standard. For that reason, we affirm the judgment of the post-conviction court.
Affirmed.
ORS 163.175(1) provides, in part:
“A person commits the crime of assault in the second degree if the person:
«⅜ ⅜‡‡ $
“(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon[.]”
ORS 163.160(1) provides, in part:
“A person commits the crime of assault in the fourth degree if the person:
«⅜ ⅜ ⅜⅞ ⅜ ⅜
“Intentionally, knowingly or recklessly causes physical injury to another!.]”
Petitioner does not seek relief from any other conviction.
Article I, section 11, states, in relevant part, that, “[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by * * * counsel.”
The Sixth Amendment states, in relevant part, that, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.”
On appeal, petitioner does not challenge the post-conviction court’s denial of relief on alleged additional grounds.
The superintendent has not disputed that the right to counsel under Article I, section 11, and the Sixth Amendment, applies to sequential proceedings such as those at issue in this case and, in particular, has not disputed that a deficiency in counsel’s performance in the dismissed misdemeanor proceeding could provide grounds for relief from a conviction resulting from the subsequently-charged felony proceeding. For that reason, we assume without deciding that petitioner’s constitutional rights to counsel apply in such a way that his claim is cognizable, and address the claim on its merits.
After briefing was complete, petitioner submitted a memorandum of additional authorities citing to the Oregon Supreme Court’s decision in Green, and suggesting that it supplies the standard for assessing whether petitioner was prejudiced by any deficiency in trial counsel’s performance. But the Supreme Court indicated in Green that its formulation of the prejudice standard in that case, which involved a claim challenging counsel’s performance in a jury trial, might not apply to a claim challenging counsel’s performance in connection with the plea process, see Green, 357 Or at 323, 323 n 13, and petitioner has presented no developed argument as to why or how the Green standard should apply in the plea context, or as to how the Green standard might differ in application from the Lafler /Frye standard in the plea context. Given the absence of developed arguments on those points, we decline to- assess how, if at all, the Green standard applies or would call for a different analysis than the Lafler/Frye standard, which is the standard that petitioner otherwise has advocated throughout this case.
Specifically, the record contains a declaration from the prosecutor stating that she would have sought to indict petitioner on the felony once he had rejected the global plea deal if petitioner indicated that he would plead guilty to the misdemeanor assault. The record also reflects that the trial court in petitioner’s criminal case did, in fact, permit the prosecutor to dismiss the information and pursue the felony charge. That evidence permits the inference that, had petitioner attempted his strategy, the trial court simply would have permitted the prosecutor to dismiss the charges, and would not have accepted petitioner’s plea.
We note further that the post-conviction court’s finding that the trial court likely would not have accepted petitioner’s plea under those circumstances is consistent with our own past statements suggesting that it would be contrary to the public interest for a trial court to accept a guilty plea to a lower charge when the prosecutor represents to the court that the state intends to pursue a felony charge. State v. Wadekamper, 68 Or App 750, 753, 683 P2d 168 (1984) (stating that “it was no part of [the trial court’s] office to accept a plea to [a] lesser charge and thereby frustrate the public’s interest in complete law enforcement,” where state represented at plea hearing that it intended to charge the defendant with a felony for the same conduct).
ORS 135.335 provides, in pertinent part:
“(1) The kinds of plea to an indictment, information or complaint, or each count thereof, are:
“(a) Guilty.
*121 “(b) Not guilty.
“(c) No contest.
“(2) A defendant may plead no contest only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.”