Opinion
A179453
11-29-2023
ALCIBIADES ALVAREZ BIRRUETE, Petitioner-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, fled 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 October 31, 2023
Marion County Circuit Court 19CV15922; Patricia A. Sullivan, Senior Judge.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Presiding Judge, and Tookey, Judge, and Kamins, Judge.
LAGESEN, C. J.
Petitioner appeals a judgment denying his petition for post-conviction relief from convictions on three counts of first-degree sodomy; the convictions were entered in 2016. On appeal, we review the post-conviction court's denial of relief for legal error and accept the court's implicit and explicit factual findings, provided that there is evidence to support them. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). Reviewing under that standard, we affirm.
Petitioner waived his right to a jury trial in 2016 and proceeded to a bench trial, where the trial court found him guilty of the three charges. In 2021, after the United States Supreme Court's 2020 decision in Ramos v. Louisiana, 590 US__, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), petitioner filed this post-conviction proceeding. He seeks relief from his 2016 convictions on the ground that his criminal trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner alleges that his trial counsel performed deficiently by not advising him that Oregon's nonunanimous jury rule was likely to "be declared unconstitutional in the future." Had he known that was the case, petitioner continues, he would have proceeded to a jury trial despite his reservations. Petitioner's argument is foreclosed by our recent case law on that issue. Aaron v. Kelly, 325 Or.App. 262, 266, 528 P.3d 1215 (2023) (trial counsel not inadequate or ineffective in 2017 for failing to foresee Ramos); Smith v. Kelly, 318 Or.App. 567, 569, 508 P.3d 77 (2022), rev den, 370 Or. 822 (2023) (trial counsel not inadequate or ineffective in 2015 for failing to foresee Ramos).
Alternatively, petitioner seeks reversal on the basis that his jury trial waiver was not knowing, intelligent, and voluntary because he was not told that he had the right to a unanimous jury verdict. Petitioner did not preserve that argument, because he did not raise it in the post-conviction court. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court[.]"). But even assuming that the alleged error was preserved, we reject it under Peeler v. Reyes, 328 Or.App. 110, 537 P.3d 206 (2023), which held that the petitioner's pre-Ramos waiver of right to a jury trial was knowing and intelligent, because the petitioner was correctly informed about the scope of his Sixth Amendment rights under the law in effect at the time of waiver.
Affirmed.