Issac v. Kelly

1

325 Or.App. 437

MICHAEL ALEX ISSAC, Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A176533

Court of Appeals of Oregon

April 19, 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 March 10, 2023

Marion County Circuit Court 18CV19090 Patricia A. Sullivan, Senior Judge.

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

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

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

KAMINS, J.

Petitioner appeals from a general judgment granting one of his claims for post-conviction relief but denying the remainder. He raises five assignments of error, four of which assert that trial counsel was inadequate under Article I, section 11, of the Oregon Constitution and ineffective under the Sixth and Fourteenth Amendments to the United States Constitution. The fifth assignment of error alleges that his convictions by nonunanimous verdicts violated the federal constitution under Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 206 L.Ed.2d 583 (2020). We reverse and remand in part, and otherwise affirm.

The state concedes, and we agree, that under Watkins v. Ackley, 370 Or. 604, 523 P.3d 86 (2022), we must reverse and remand for further proceedings concerning petitioner's convictions for Counts 1, 3, 4, 7, 8, 9, 15, and 16, because the jury verdicts were not unanimous. Petitioner's third and fourth assignments of error are rendered moot, because they asserted i?amos-related claims of inadequate assistance. See Huggett v. Kelly, 370 Or. 645, 648 n 3, 523 P.3d 84 (2022) (determining that granting relief on the petitioner's standalone Ramos claim rendered moot his claims that trial counsel was ineffective by failing to object to the nonunanimous guilty verdicts and by failing to request a jury concurrence instruction).

Petitioner's first two assignments of error raise challenges to trial counsel's performance which could potentially implicate his unanimous verdicts, and so we turn to address them. In his first assignment of error, petitioner argues that trial counsel was inadequate and ineffective in failing to object to leading questions by the prosecutor. We reject that claim because counsel's strategic choice was a reasonable one and petitioner has not established prejudice. See Behrle v. Taylor, 307 Or.App. 126, 132-33, 476 P.3d 475 (2020), rev den, 367 Or. 709 (2021) (absent evidence that the witness might have said something more advantageous to the petitioner or that had a tendency to affect the verdict, the petitioner did not prove that he was prejudiced by trial counsel's failure to object to leading...