Carter v. Highberger

1

324 Or.App. 43

COLIN CARTER, aka Colin Thomas Carter, Petitioner-Appellant, v. Josh HIGHBERGER, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.

A176193

Court of Appeals of Oregon

February 1, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 January 5, 2023

Umatilla County Circuit Court 19CV42813, J. Burdette Pratt Senior Judge.

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

EGAN, J.

After a bench trial, petitioner was convicted of two counts of first-degree rape, and one count of each of first-degree sexual abuse, first-degree sodomy, and first-degree unlawful sexual penetration. Petitioner appeals a general judgment granting in part and denying in part his amended petition for post-conviction relief.^[1] His amended petition alleged that trial counsel rendered inadequate assistance under Article I section 11, of the Oregon Constitution, and ineffective assistance under the Sixth and Fourteenth Amendments to the United States Constitution. On appeal, petitioner raises two assignments of error. We affirm.

In his first assignment of error, petitioner contends that the "post-conviction court erred in dismissing [the claims contained in paragraphs 10(B)(3) and 10(B)(4) of the amended petition] on summary judgment." The state responds that we "lack jurisdiction to consider petitioner's claim of error," because petitioner failed to file a timely notice of appeal from the limited judgment dismissing the claims contained in paragraphs 10(B)(3) and 10(B)(4) of the amended petition.

We agree with the state that we cannot reach petitioner's first assignment of error: Petitioner failed to timely appeal the limited judgment dismissing the claims contained in paragraphs 10(B)(3) and 10(B)(4) of his amended petition and, instead, timely appealed only the general judgment. See Interstate Roofing, Inc. v. Springville Corp., 347 Or. 144,163, 218 P.3d 113 (2009) ("Because the limited judgment finally resolved all three of the claims that it addressed, and because defendant did not timely appeal the limited judgment, the Court of Appeals should have granted plaintiffs motion to dismiss the appeal as to those claims."); Phillips v. State Farm Fire and Casualty Co., 302 Or.App. 500, 503, 461 P.3d 1008 (2020) ("A limited judgment entered in compliance with ORCP 67 B is an appealable judgment, and the notice of appeal must be filed within 30 days of its entry.").

In his second assignment of error, petitioner contends that the "post-conviction court erred when it denied relief on petitioner's first claim of ineffective assistance of counsel." Petitioner's first claim asserted that petitioner's trial counsel was inadequate and ineffective for failing "to object, or otherwise preserve for appeal, the State questioning Petitioner about convictions that did not conform with OEC 609."

OEC 609 allows a party to impeach a witness by eliciting testimony that the witness was previously convicted of certain crimes but excludes prior convictions where more "than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." In this case, during petitioner's trial, testimony about three prior convictions was elicited from petitioner and properly admissible as impeachment evidence under OEC 609-viz., a conviction for attempted sexual abuse in the first degree, a conviction for failure to register as a sex offender, and a conviction for possession of a controlled substance. Testimony about several other convictions-which were not properly admissible under OEC 609, because they did not occur within the 15 years prior to trial-was also elicited from petitioner, and petitioner's trial counsel failed to object to the state asking petitioner about those convictions-viz., a conviction for unauthorized use of a motor vehicle, a conviction for felon in possession of a weapon, a conviction for fourth-degree assault, and two additional convictions for possession of methamphetamine.

The post-conviction court denied petitioner's request for relief, concluding that, although petitioner's trial counsel was deficient in failing to object "to the mention of the convictions beyond the 15-year limit," petitioner "did not prove prejudice."

On appeal, petitioner argues that the postconviction court erred in determining that he had failed to meet his burden of proving prejudice, because witness credibility was "central to [this] case"-insofar as petitioner testified that his sexual contact with the victim was consensual, and the victim testified that the sexual contact was not consensual-and in those circumstances, according to petitioner, "any error in failing to make a meritorious objection to evidence that impacted the factfinder's assessment of credibility could have affected the outcome of the proceeding." (Emphasis in petitioner's brief.) As petitioner sees it, "without an express statement that it was ignoring the inadmissible evidence, the presumption should be that the court considered it in reaching a verdict."

Under Article, I, section 11, the standard for assessing whether trial counsel's deficient performance prejudiced a petitioner who was convicted pursuant to a trial is "whether the deficient performance could have affected the outcome of the case." Maxfield v. Nooth, 278 Or.App. 684, 688, 377 P.3d 650 (2016) (emphasis in original). That standard "demands more than a mere possibility, but less than a probability that trial counsel's deficiencies affected the outcome of the case." Id. (internal quotation marks omitted). Under the Sixth Amendment, a petitioner need show only a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 689 (internal quotation marks omitted). A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id. (internal quotation marks omitted).

We conclude that the trial court did not err. To be sure petitioner's counsel failed to object to testimony about several of petitioner's prior convictions and should have done so. But, as noted, testimony about three of petitioner's other prior convictions was elicited from petitioner during his trial, each...