Aaron v. Kelly

325 Or.App. 262

528 P.3d 1215

Adam Ray AARON, Petitioner-Appellant,

v.Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A175457

Court of Appeals of Oregon.

Submitted March 10, 2023.

April 19, 2023

Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Chief Judge, and Kamins, Judge, and Armstrong, Senior Judge.

LAGESEN, C. J.

In May 2017, a jury convicted petitioner of three drug offenses: unlawful delivery of heroin; unlawful possession of heroin; and unlawful possession of methamphetamine. In this post-conviction proceeding, petitioner seeks relief from those convictions on the ground that his trial counsel performed deficiently, in violation of his rights under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution, in three respects: (1) by failing to move to suppress evidence obtained in a warranted search of his home on the ground that the probable cause determination supporting the warrant was based on evidence obtained in a warrantless search of his garbage that (we now know) was unconstitutional, State v. Lien , 364 Or. 750, 441 P.3d 185 (2019) ; (2) by failing to object to the trial court's instruction to the jury that it could convict by a nonunanimous verdict, an instruction that (we now know) is contrary to the right to a unanimous jury under the Sixth and Fourteenth Amendments, Ramos v. Louisiana , 590 US ––––, 140 S Ct 1390, 206 L Ed 2d 583 (2020) ; and (3) by failing to request a jury poll so as to enable petitioner to demonstrate prejudice, in the event Oregon's longstanding practice of allowing nonunanimous verdicts was later deemed unconstitutional. The post-conviction court denied relief, concluding that counsel's judgment at the time was consistent with the Oregon Supreme Court's longstanding precedent on warrantless searches of garbage and the United State Supreme Court's longstanding precedent holding that Oregon's nonunanimous verdicts were constitutional. We affirm.

We accept the post-conviction court's supported implicit and explicit factual findings and review for legal error. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). At issue in this matter are parallel claims of inadequate assistance of trial counsel under Article I, section 11, and ineffective assistance of trial counsel under the Sixth Amendment to the United States Constitution. To establish that his trial counsel rendered inadequate assistance for purposes of Article I, section 11, petitioner was required to prove two elements: (1) a performance element—that trial counsel "failed to exercise reasonable professional skill and judgment"; and (2) a prejudice element—that "petitioner suffered prejudice as a result of counsel's inadequacy." Johnson v. Premo , 361 Or. 688, 699, 399 P.3d 431 (2017). A functionally equivalent two-element standard governs petitioner's claim of ineffective assistance of counsel under the Sixth Amendment. Id . To prevail on that claim, petitioner was required to demonstrate that "trial counsel's performance ‘fell below an objective standard of reasonableness’ " and also that "there was a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Id . at 700, 399 P.3d 431 (quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984) ).

In this instance, petitioner's claims that counsel performed unreasonably (1) by not moving to suppress; (2) by not challenging the nonunanimous jury instruction; and (3) by not requesting a jury poll, all fail for the same reason at the same stage of analysis. In each instance, counsel's judgment accorded with longstanding high court precedent. It ordinarily is reasonable for a lawyer to make judgments that accord with controlling high court precedent at the time those judgments are made; lawyers generally are not required to anticipate that a high court will completely change the law's direction.

Miller v. Lampert , 340 Or. 1, 16, 125 P.3d 1260 (2006) ("Counsel was not required to anticipate that two years later the United States Supreme Court would reverse course in Apprendi [v. New Jersey , 530 U.S. 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000) ], interpret the Sixth Amendment and Due Process Clauses as the dissent had urged in Almendarez-Torres [v. United States , 523 U.S. 224, 118 S Ct 1219, 140 L Ed 2d 350 (1998) ], and read its decision in Almendarez-Torres as establishing only a narrow exception to the new rule announced in Apprendi ."). We recognize that there may be instances in which the circumstances are such that a lawyer exercising reasonable professional skill and judgment may be expected to anticipate an imminent departure from stare decisis —for example, after a high court has allowed review to address the question of whether to overrule precedent. See Ramos , 590 US at ––––, 140 S Ct at 1420 (Kavanaugh, J., concurring) ("[A]s to ineffective-assistance-of-counsel claims, an attorney presumably would not have been deficient for failing to raise a constitutional jury-unanimity argument before today's decision—or at the very least, before the Court granted certiorari in this case."). In this case, however, no such circumstances are present.

Turning to the specifics, with respect to the search of petitioner's garbage, petitioner's trial counsel explained that she did not move to suppress because it was "[m]y understanding at that time [ ] that a trash pull was a legal method of gathering evidence." That judgment was reasonable. At the time of petitioner's trial, it had been clear for 10 years that a person did not have an Article I, section 9, privacy interest in garbage turned over to a sanitation company without restrictions on the company's use of the garbage.¹ State v. Howard/Dawson , 342 Or. 635, 641, 157 P.3d 1189 (2007), overruled in part by State v. Lien , 364 Or. 750, 441 P.3d 185 (2019). Just a few months before petitioner's trial, we reiterated that rule in our own decision in State v. Lien , 283 Or App 334, 343, 387 P.3d 489 (2017) ( Lien I ), rev'd , 364 Or. 750, 441 P.3d 185 (2019) ( Lien II ). In view of that case law, counsel's judgment was sound.

That the Supreme Court allowed review of our decision in Lien I and overruled Howard/Dawson , Lien II , 364 Or. at 781, 441 P.3d 185, does not persuade us otherwise. The arc of analysis by the Supreme Court in Lien II is not one that reasonably could have been foreseen in May 2017. Justice Kistler's dissenting opinion highlights the unpredictability of the path taken by the majority opinion:

"On the question of defendants’ privacy interests in their curbside garbage, the majority travels from Portland to Salem by way of Maine. Largely absent from that analysis are this court's two prior cases on privacy interests in garbage, Howard/Dawson and [State v. ] Purvis , [249 Or. 404, 438 P.2d 1002 (1968) ], and the concept of abandoned property, upon which both turned. Instead, the majority focuses on a right to

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