Evans v. Nooth

318 Or.App. 162

506 P.3d 469

Michael James EVANS, Petitioner-Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A161781

Court of Appeals of Oregon.

Submitted on remand July 1, 2021.

March 9, 2022

Jed Peterson and O'Connor Weber LLC filed the opening brief for appellant. Michael James Evans filed the supplemental brief pro se.

Frederick Boss, Deputy Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the answering brief for respondent.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

JAMES, P. J.

This post-conviction case, which involves a claim of inadequate assistance by petitioner's appellate counsel, is before us on remand from the Oregon Supreme Court. Evans v. Nooth , 368 Or. 159, 487 P.3d 42 (2021) ( Evans IV ). We had previously affirmed, Evans v. Nooth , 300 Or. App. 331, 452 P.3d 1026 (2019) ( Evans III ), but the Supreme Court concluded that our analysis had introduced issues into the case beyond what had been litigated in the post-conviction court and on appeal in Evans III . For that reason, the Supreme Court sent the case back to us to consider "the question before the post-conviction court and framed by the parties on appeal," which is "whether, in responding to the state's petition for reconsideration [on direct appeal], appellate counsel had provided inadequate assistance in failing to argue that the trial court's erroneous admission of the doctor's testimony had required reversal of all convictions, including on Counts 13 and 14." Evans IV , 368 Or. at 165, 487 P.3d 42. On reconsideration, we agree with petitioner that his appellate counsel failed to exercise reasonable professional skill and judgment regarding the reversal of Counts 13 and 14, and we conclude that petitioner was prejudiced as a result. Accordingly, we reverse and remand the post-conviction court's judgment and leave it to that court to fashion an appropriate remedy in the first instance.¹

Most of the pertinent background facts were set out by the Supreme Court, and we draw from that summary to frame the issues on remand:

"The relevant facts are as follows. Petitioner was charged with sexually assaulting two siblings, A and B. A had disclosed the abuse first, reporting both that petitioner had abused her and that she had witnessed him abusing [her brother, B]; several months later, B also disclosed abuse. At trial, the state offered testimony from a doctor who diagnosed A with having been sexually abused, based in part on physical evidence of abuse. Petitioner asked for a hearing under OEC 104, to determine whether that diagnosis was admissible scientific evidence. The trial court opined that the diagnosis was not scientific evidence, denied petitioner's request for hearing, and admitted the doctor's testimony. A jury convicted petitioner on eight counts involving A and two counts—Counts 13 and 14—involving B. The court imposed concurrent 75-month sentences on the counts related to B, with a longer set of sentences, several consecutive, on the counts related to A.

"Petitioner appealed. Among other assignments of error, he challenged the admission of the doctor's testimony regarding A. The Court of Appeals reversed in part, citing State v. Southard , 347 Or. 127, 218 P.3d 104 (2009) (then recently decided), and concluding that the trial court had erred in admitting the doctor's testimony without conducting an OEC 104 hearing. State v. Evans , 236 Or. App. 467, 470, 236 P.3d 848 ( Evans I ), modified on recons. , 238 Or. App. 466, 242 P.3d 718 (2010) ( Evans II ); see alsoSouthard , 347 Or. at 139, 142, 218 P.3d 104 (diagnosis of ‘sexual abuse’ not accompanied by physical evidence of abuse qualified as scientific evidence, but was not admissible under OEC 403, because it did not ‘tell the jury anything that it could not have determined on its own’). The Court of Appeals reversed and remanded petitioner's convictions on the counts relating to A. However, the court's opinion said nothing about Counts 13 and 14, the counts related to B. Evans I , 236 Or. App. at 470-71, 236 P.3d 848.

"The state sought reconsideration, seeking clarification that petitioner's convictions on Counts 13 and 14 had not been affected by the errors identified in Evans I . Petitioner's appellate counsel filed a response, which is the genesis of petitioner's inadequate assistance claim. In that response, counsel wrote that petitioner ‘agree[d]’ that Evans I had affirmed on Counts 13 and 14, and did ‘not object to modifying the opinion to make that affirmation express.’ The response further agreed that remand and resentencing on Counts 13 and 14 were appropriate. The Court of Appeals allowed reconsideration and modified its disposition to expressly affirm petitioner's convictions on Counts 13 and 14. Evans II , 238 Or. App. 466, 242 P.3d 718. On remand, the trial court dismissed the counts relating to A at the state's request, but it also resentenced petitioner to consecutive 75-month sentences on Counts 13 and 14.

"Petitioner filed for post-conviction relief, contending that his appellate counsel's response on reconsideration of Evans I had amounted to inadequate assistance. He specifically asserted that counsel should have relied on Southard to make an argument that, together with other aspects of the state's evidence, the doctor's testimony improperly had vouched for both A's and B's credibility, and had created a substantial risk of prejudice affecting the jury's evaluation of their credibility—such that the error was not harmless as to Counts 13 and 14, requiring reversal. The superintendent countered that Evans II affirmatively had stated that Counts 13 and 14 had been ‘unaffected by the error’ in admitting the doctor's testimony, 238 Or. App. at 467, 242 P.3d 718 —stated differently, that the error identified in Evans I had been harmless as to Counts 13 and 14, which in turn showed that counsel's response had not prejudiced petitioner. The superintendent otherwise argued that counsel had acted reasonably."

Evans IV , 368 Or. at 161-65, 487 P.3d 42 (emphasis in original; footnotes omitted).

The post-conviction court ultimately denied petitioner's claim. The court reasoned that appellate counsel had acted reasonably because the claim of error in Evans I had involved only the failure to hold an OEC 104 hearing and had not implicated Southard . Therefore, the post-conviction court concluded, the reason for reversing petitioner's conviction on counts involving A did not extend to Counts 13 and 14, which involved B. The post-conviction court further concluded that petitioner had failed to establish prejudice because he failed to prove that "further action by his appellate attorney would have changed" this court's determination on direct appeal that the error had not affected the verdicts on those two counts.

Petitioner appealed the post-conviction court's judgment, and this court affirmed. We understood the question before us to be whether petitioner had demonstrated that he was entitled to prevail as a matter of law on his claim of inadequate assistance. We explained that appellate work, like trial work, does not involve a one-size fits all approach; "there are a myriad of tactical decisions in how to best conduct litigation that are properly the province of the attorney," but deciding on the broader objectives of litigation—including which convictions to challenge on appeal—is the client's decision to make. Id. at 337-38. We then concluded that petitioner had failed to provide the necessary evidentiary context for us to conclude that he was entitled to prevail as a matter of law.²

The Supreme Court allowed review and reversed our decision. The court stated, "As can be seen, the question before the post-conviction court and framed by the parties on appeal was whether, in responding to the state's petition for reconsideration of Evans I , appellate counsel had provided inadequate assistance in failing to argue that the trial court's erroneous admission of the doctor's testimony had required reversal of all convictions, including on Counts 13 and 14. But the Court of Appeals did not address that question." Evans IV , 368 Or. at 165, 487 P.3d 42. Rather, the Supreme Court explained, we had sua sponte "imposed an evidentiary burden on petitioner to establish facts concerning the objectives of his earlier appeal that had not been at issue below"—that is, we had "in effect affirmed the post-conviction court's judgment by invoking the ‘right for the wrong reason’ principle." Id . at 166, 487 P.3d 42. The court concluded that our approach had prejudiced petitioner, because he "had no reason to offer evidence of that nature to the post-conviction court." Id. And, accordingly, the Supreme Court reversed and remanded for us "to consider petitioner's assignment of error as framed by the parties before the post-conviction court and in their Court of Appeals briefing." Id . at 167, 487 P.3d 42.

With the Supreme Court's directive in mind—and, in light of that court's observation that petitioner had no reason to offer evidence regarding his appellate objectives in the post-conviction court—we proceed upon what we have been given, which is the Supreme Court's assumption that petitioner's intention was to obtain a retrial on all convictions. We assess the adequacy of appellate counsel's representation on direct appeal in light of that.

To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show "that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel's inadequacy." Johnson v. Premo , 361 Or. 688, 699, 399 P.3d 431 (2017). In determining whether counsel's actions or inaction reflected an absence of "professional skill and judgment," we try to evaluate the lawyer's conduct "from the lawyer's perspective at the...