Summary
In Evans v. Nooth, 300 Or. App. 331, 452 P.3d 1026 (2019), the petitioner argued that his appellate counsel on his direct appeal was constitutionally inadequate for failing to challenge all of the counts of which he was convicted.
Summary of this case from Nichols v. PerssonOpinion
A161781
10-30-2019
Michael James EVANS, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
Harrison Latto, Portland, argued the cause for appellant. On the opening brief was Jed Peterson. Michael James Evans filed the supplemental brief pro se. Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
Harrison Latto, Portland, argued the cause for appellant. On the opening brief was Jed Peterson. Michael James Evans filed the supplemental brief pro se.
Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
JAMES, J. Petitioner appeals from a judgment denying his petition for post-conviction relief, raising two assignments of error in his opening brief and one assignment of error in a supplemental brief. We reject his second and supplemental assignments without discussion, writing only to address his first assignment of error, wherein he asserts that the trial court erred in relation to his ineffective assistance of appellate counsel claim. Specifically, petitioner asserts that his appellate counsel, who challenged the admission of expert testimony diagnosing abuse as to one victim, A, and prevailed on appeal as to certain counts, was ineffective because she failed to argue that the expert's testimony affected the entire trial, including counts against a separate victim, B. To prevail on appeal under the circumstances, petitioner must establish that the record in this case contains no genuine issue of material fact on any of the elements of petitioner's post-conviction claim and that he was entitled to a judgment in his favor as a matter of law. We conclude that here, the record did not require a directed verdict in favor of petitioner, and accordingly, the post-conviction court did not err. We affirm.
For purposes of our disposition, a detailed recitation of the facts in the underlying criminal case is unnecessary and would not benefit the bench or bar. It suffices to say that in 2006, a grand jury indicted petitioner for sexual abuse in the first degree (Counts 1-8 and 13-15) and sodomy in the first degree (Counts 9-12). The alleged victims were A, a girl, (Counts 1-12) and B, a boy, (Counts 13-15). At trial, the state offered expert testimony from a doctor, Koeller, diagnosing A with having been sexually abused, based in part on the appearance of her hymen. The jury found petitioner guilty on Counts 1-6, 9, and 10 (involving A), and 13 and 14 (involving B), and it acquitted him of Counts 7, 8, 11, and 12 (involving A) and Count 15 (involving B).
Petitioner appealed. Appellate counsel raised multiple assignments of error in the opening brief, the first of which was a challenge to the admission of expert testimony diagnosing A with having suffered sexual abuse, without an OEC 104 hearing. Petitioner raised two supplemental assignments of error pro se , unrelated to the assignments raised by counsel. We agreed that the first assignment of error established that the trial court erred in failing to provide an OEC 104 hearing and reversed on that assignment of error, noting that "[t]he issues on appeal concern only the convictions pertaining to defendant's abuse of A (Counts 1-6 and 9-10)." State v. Evans , 236 Or. App. 467, 469, 236 P.3d 848 (2010).
The state petitioned for reconsideration asking us to clarify that "our disposition, which specified the counts that were reversed and remanded, does not affect other counts unaffected by the error, which should be affirmed." State v. Evans , 238 Or. App. 466, 467, 242 P.3d 718 (2010), rev. den. , 350 Or. 230, 253 P.3d 1079 (2011). That request was unopposed by petitioner's appellate counsel. We agreed, modifying our previous dispositional tagline to indicate that nonaffected counts—specifically the counts related to B, which were not the subject of Koeller's testimony—were otherwise affirmed.
Petitioner subsequently filed a petition for post-conviction relief raising numerous claims. Petitioner's fifth asserted claim specifically addressed inadequate and ineffective assistance of appellate counsel, asserting:
"On October 1, 2009, before oral argument on petitioner's direct appeal, the Oregon Supreme Court decided State v. Southard , 347 Or. 127, 218 P.3d 104 (2009). Based upon this decision, petitioner's appellate counsel knew or should have known that, given the evidence received by the jury *** the trial court's failure to grant petitioner an OEC 104 hearing required a reversal of petitioner's convictions for offenses against ‘A’ and ‘B’.
"On or after October 1, 2009, appellate counsel failed to request that the Court of Appeals reverse and remand Counts 13 and 14 based on State v. Southard , 347 Or. 127, 218 P.3d 104 (2009), and on grounds that *** Dr. Koeller's expert opinion testimony diagnosing ‘A’ with sexual abuse, improperly vouched for the credibility of both ‘A’ and ‘B’ and created a substantial risk that the jury was prejudiced by that testimony when evaluating the credibility of both ‘A’ and ‘B.’ Instead, appellate counsel improperly conceded that petitioner's convictions involving ‘B’ on Counts 13 and 14, were unaffected by the trial court's error.
"Competent appellate counsel, exercising reasonable professional skill and judgment, would interpret State v. Southard , 347 Or. 127, 218 P.3d 104 (2009) to support reversal and remand of Counts 13 and 14 for the reasons alleged above and would not concede that Counts 13 and 14 should be affirmed.
"There is a reasonable probability that the Court of Appeals would have reversed and remanded petitioner's convictions on Counts 13 and 14 if appellate counsel had not conceded that those counts were unaffected by the trial court's error and had argued that State v. Southard , 347 Or. 127, 218 P.3d 104 (2009), required reversal and remand of those counts."
In support of his claims, petitioner introduced numerous pieces of evidence including declarations of various individuals, as well as documentary exhibits. However, petitioner did not offer any testimony, either in person or through affidavit or declaration, from appellate counsel. Similarly, while petitioner himself testified at length about his interactions with trial counsel, petitioner's testimony did not discuss his interactions with appellate counsel. In support of his fifth claim, petitioner offered solely the appellate brief filed by counsel. Ultimately, the post-conviction court denied relief on all claims, and this appeal followed. On appeal, defendant argues, among other contentions, that he was entitled to judgment in his favor as a matter of law on his claim that appellate counsel was constitutionally inadequate or ineffective.
Before the post-conviction court, petitioner did not move for directed verdict pursuant to ORCP 60. Typically, a party must move to withdraw a factual issue from the fact-finder in order to be entitled to raise on appeal the argument that the party should have prevailed on that issue as a matter of law. Wood Ind'l Corp. v. Rose , 271 Or. 103, 105-06, 530 P.2d 1245 (1975). However, in the context of a post-conviction bench trial, the Oregon Supreme Court has held that "[r]equiring the party with the burden of persuasion on a claim to make a motion for directed verdict (or another similar motion) when the court serves as the finder of fact does not promote judicial efficiency or fairness to the parties." Peiffer v. Hoyt , 339 Or. 649, 658, 125 P.3d 734 (2005). However, Peiffer speaks to preservation, not to the standard of review. Thus, while a post-conviction petitioner may appeal from a post-conviction judgment, and use arguments advanced in closing as a proxy for a motion for directed verdict, we do not reweigh the evidence. Rather, we review the post-conviction proceedings for errors of law, as if a motion for directed verdict had been made. Peiffer , 339 Or. at 658-59, 125 P.3d 734 ; Moen v. Peterson , 312 Or. 503, 510 n. 6, 824 P.2d 404 (1991) ; see also Batzer Construction, Inc. v. Boyer , 204 Or. App. 309, 317, 129 P.3d 773, rev. den. , 341 Or. 366, 143 P.3d 239 (2006).
In reviewing the post-conviction court's denial of a motion for directed verdict—even one raised via closing argument pursuant to Peiffer —we determine whether the facts in evidence, and inferences drawn from those facts, interpreted in the nonmoving party's favor, entitled petitioner to a favorable decision as a matter of law. Roop v. Parker Northwest Paving Co ., 194 Or. App. 219, 237, 94 P.3d 885 (2004), rev. den. , 338 Or. 374, 110 P.3d 113 (2005) ; Jones v. Emerald Pacific Homes, Inc. , 188 Or. App. 471, 478, 71 P.3d 574, rev. den. , 336 Or. 125, 79 P.3d 882 (2003) ; Kotera v. Daioh Int'l U.S.A. Corp ., 179 Or. App. 253, 276, 40 P.3d 506 (2002). With that standard in mind, we turn to the merits.
A defendant charged with a crime has a constitutional right to counsel under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment to the United States Constitution. Under both constitutions, "the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance." State v. Smith , 339 Or. 515, 526, 123 P.3d 261 (2005). Both constitutions require "adequate performance by counsel" concerning the "functions of professional assistance which an accused person relies upon counsel to perform on his behalf." Krummacher v. Gierloff , 290 Or. 867, 872, 627 P.2d 458 (1981) ; see also Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (Sixth Amendment right to counsel requires not just counsel, but "effective" counsel).
When a defendant believes he has been denied his constitutional right to adequate counsel, he may bring an action to vindicate that right by filing a petition for post-conviction relief. In Oregon, except as specified by statute, post-conviction actions are civil proceedings governed by the Oregon Rules of Civil Procedure and the Oregon Evidence Code. Sanchez v. State of Oregon , 272 Or. App. 226, 240, 355 P.3d 172 (2015), rev. den. , 358 Or. 449, 366 P.3d 719 (2015) ; Lopez v. Nooth , 287 Or. App. 731, 733, 403 P.3d 484 (2017) ("In Oregon, actions for post-conviction relief are civil proceedings."); Schelin v. Maass , 147 Or. App. 351, 355, 936 P.2d 988, rev. den. , 325 Or. 446, 940 P.2d 520 (1997) (holding same); Kumar v. Schiedler , 128 Or. App. 572, 577, 876 P.2d 808 (1994) (De Muniz, J., concurring) ("Post-conviction is a civil proceeding[.]").
Like any plaintiff in a civil action, a post-conviction petitioner bears the burden of production and persuasion for each material fact necessary to establish the claim. For a claim of inadequate assistance of counsel under the Oregon Constitution, the post-conviction petitioner, as the plaintiff, must establish by a preponderance of the evidence, first that his attorney "failed to exercise reasonable professional skill and judgment," and second, "that counsel's failure had a tendency to affect the result of his trial." Lichau v. Baldwin , 333 Or. 350, 359, 39 P.3d 851 (2002) (citation omitted).
For a claim of ineffective assistance of counsel under the Sixth Amendment, a post-conviction petitioner, as the plaintiff, must establish by a preponderance of the evidence, that his or her trial counsel's performance "fell below an objective standard of reasonableness." Strickland , 466 U.S. at 688, 104 S. Ct. 2052. And, if a petitioner proves that counsel was ineffective, he or she also must show that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id . at 694, 104 S.Ct. 2052.
In assessing inadequate or ineffective assistance of counsel claims, courts have long recognized that any such inquiry—particularly when tactical choices of counsel are called into question—is a highly context-driven endeavor. At the end of the day, the court must evaluate the reasonableness of counsel's representation "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison , 477 U.S. 365, 381, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). The proper measure of attorney performance is judged by the "reasonableness under prevailing professional norms" which includes a "context dependent consideration of the challenged conduct as seen from counsel's perspective at the time of that conduct." Wiggins v. Smith , 539 U.S. 510, 511, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (citations omitted). The inquiry focuses on the "lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight." Lichau , 333 Or. at 360, 39 P.3d 851. A reviewing court will not "second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment." Gorham v. Thompson , 332 Or. 560, 567, 34 P.3d 161 (2001).
In evaluating such context-dependent decisions from counsel's perspective, it is essential to recognize that the lawyer is but the agent of the client. It is the role of the client, not the lawyer, to set the objectives of the client's litigation. "It is the role of the lawyer [to be] a professional advisor and advocate, not to usurp his client's decisions concerning the objectives of representation." United States v. Wellington , 417 F.3d 284, 289 (2d Cir. 2005) (internal quotation marks omitted). As the American Bar Association Model Rules of Professional Conduct (RPC) state, "a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." RPC 1.2. That language is repeated in the Oregon Rules of Professional Conduct.
A criminal defense attorney, both at trial and on appeal, cannot employ a one-size-fits-all approach to representation. Sometimes a client insists on a trial, other times a client will want to negotiate. Some clients will want to challenge some counts, but not others. Some clients will want to appeal some convictions, while leaving others unchallenged. "The right to defend is personal. The defendant, and not his lawyer or the state, will bear the personal consequences of a conviction." Faretta v. California , 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). While there are a myriad of tactical decisions in how to best conduct litigation that are properly the province of the attorney, deciding on the broader objectives of litigation is the client's decision to make. The lawyer is obligated to make tactical decisions that work towards those objectives, not against them.
As such, a petitioner cannot prevail on a claim for post-conviction relief if the attorney merely carried out tactical decisions at the directions of the client in furtherance of the client's goals for litigation—goals that the client now regrets. See Roe v. Flores-Ortega , 528 U.S. 470, 477, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) ("[A] defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." (Citations omitted; emphasis in original.)); see also Coleman v. Mitchell , 268 F.3d 417, 448 n. 16 (6th Cir. 2001) ("[C]ounsel was not ineffective for following the defendant's clear and informed instruction." (Citation omitted.)); Frye v. Lee , 235 F.3d 897, 906-07 (4th Cir. 2000) (observing that if the court were to hold that defense counsel "rendered ineffective assistance [by acceding to the defendant's instructions not to present] mitigation evidence, [the court] would be forcing defense lawyers in future cases to choose between Scylla and Charybdis"); Autry v. McKaskle , 727 F.2d 358, 360-61 (5th Cir. 1984) (rejecting claim of ineffective assistance of counsel for failure to investigate and present evidence at sentencing phase where defendant had instructed his attorney not to fight the death penalty); cf. Brookhart v. Janis , 384 U.S. 1, 4-9, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) (reversing judgment of conviction where defense counsel, over the defendant's in-court objections that he did not wish to plead guilty, waived the defendant's right to present a defense and cross-examine witnesses).
Accordingly, for most claims wherein a post-conviction petitioner is challenging the tactics employed by counsel, to prevail as a matter of law under a directed verdict standard, the petitioner must present evidence establishing, either directly or inferentially, what the objectives of the litigation were. Typically, though not always, that can be provided by statements from counsel or testimony from the petitioner. But there must be some evidence of the broader objectives of litigation to be able to accurately assess counsel's performance in the context-dependent manner required. Here, petitioner presented no evidence of the objectives of his appellate litigation. Consequently, on appeal petitioner is forced to advance a categorical argument that all appellate attorneys render constitutionally inadequate or ineffective representation when they fail to challenge each and every count of conviction. For the reasons we have discussed, that argument fails. Alternatively, petitioner may be relying on an unspoken argument that, absent contrary evidence, a defendant is presumed to want to vigorously challenge each and every criminal charge as the objective of his litigation, both at trial and on appeal. But that argument, too, must fail. ORS 40.135 provides a discrete list of permissible presumptions, and a presumption about a criminal defendant's objectives of litigation is not included. As the Oregon Supreme Court has cautioned, the list of presumptions should be strictly construed. State v. Garrett , 281 Or. 281, 286, 574 P.2d 639 (1978) ("On the contrary, the more cogent reasoning would require a strict rather than liberal construction of statutorily imposed presumptions, since they are based primarily upon probability and judicial convenience."). Accordingly, we cannot conclude that the facts in evidence entitled petitioner to a favorable decision as a matter of law.
Affirmed.