Opinion
A176800
04-19-2023
NEHEMIAH BEAVERS, Petitioner-Appellant, v. Kimberly HENDRICKS, Superintendent, Santiam Correctional Institution, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 22, 2023
Marion County Circuit Court 20CV19433; A176800 Claudia M. Burton, Senior Judge.
Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kistler, Senior Judge.
TOOKEY, P. J.
Petitioner appeals a judgment denying his petition for post-conviction relief. In his sole assignment of error, petitioner challenges the post-conviction court's rejection of his claim that his trial counsel was inadequate under Article I, section 11, of the Oregon Constitution and ineffective under the Sixth and Fourteenth Amendments to the United States Constitution by failing to move before sentencing to withdraw his guilty plea. Accepting "the postconviction court's findings of historical fact if those findings are supported by the evidence in the record" and reviewing "the post-conviction court's denial of relief for legal error," Cartrette v. Nooth, 284 Or.App. 834, 840, 395 P.3d 627 (2017), we affirm.
Claims of inadequate assistance of counsel involve "a two-pronged inquiry." Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002). To succeed on such a claim under Oregon law, a petitioner must prove by a preponderance of the evidence that "[1] his or her trial counsel failed to exercise reasonable professional skill and judgment and that, [2] because of that failure, the petitioner suffered prejudice." Pereida-Alba v. Coursey, 356 Or. 654, 661-62, 342 P.3d 70 (2015). Similarly, "under federal law, a petitioner must establish that [1] counsel's performance was deficient and that [2] the deficient performance prejudiced the defense." Id. at 662 (internal quotation marks omitted). The state and federal standards are "functionally equivalent." Johnson v. Premo, 361 Or. 688, 699, 399 P.3d 431 (2017).
Regarding the first prong, petitioner asserts that trial counsel was deficient, because "petitioner wanted to withdraw his plea," and "counsel's decision to proceed to sentencing without moving to withdraw petitioner's plea was not aligned with petitioner's interests." Contrary to that assertion, however, the post-conviction court found that petitioner did not ask trial counsel to withdraw his plea and, further, that petitioner agreed that the plea was a good deal and wanted to go forward with it. A declaration submitted by trial counsel, which the post-conviction court found credible, supports that finding.
Petitioner also argues that trial counsel was deficient in failing to obtain and review a transcript of an earlier hearing, asserting that, had counsel done so, she would have understood that petitioner wanted to withdraw his guilty plea. But the transcript of that hearing-which was submitted as an exhibit in the post-conviction court-supports the post-conviction court's finding that petitioner appeared at that hearing to request a new attorney and that, when the trial court asked petitioner at that hearing if he wanted to withdraw his plea, petitioner responded, "[T]hat's not what I'm seeking to do today."
In view of the foregoing, we conclude that the postconviction court did not err in determining that petitioner did not prove that his trial counsel failed to exercise reasonable professional skill and judgment in the manner alleged.
Regarding the second prong, petitioner argues that he was prejudiced, because trial counsel's "failure to move to withdraw his guilty plea could have tended to affect the verdict." Even assuming for the sake of argument that trial counsel was deficient in the manner alleged, the postconviction court determined that petitioner failed to meet his burden of proving prejudice-i.e., "that there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial," Rodriguez-Moreno v. State of Oregon, 208 Or.App. 659, 663, 145 P.3d 256 (2006), rev den, 343 Or. 159 (2007) (brackets and internal quotation marks omitted)-and the record is not one that would compel a different conclusion.
We understand petitioner to also assert that he was prejudiced by trial counsel's failure to move to withdraw his guilty plea, because his plea lacked a factual basis. That argument was not adequately preserved in the post-conviction court, and we therefore do not address it. See Pohlman v. Cain, 312 Or.App. 676, 680, 493 P.3d 1095, rev den, 368 Or. 787 (2021) ("[A]s a general rule, arguments not made to the post-conviction court in support of a claim will not be considered on appeal.").
Affirmed.