Molette v. Nooth

291 Or.App. 426

421 P.3d 379

Troy James MOLETTE, Petitioner-Appellant,

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

A158692

Court of Appeals of Oregon.

Argued and submitted June 28, 2016.

April 18, 2018

Jed Peterson, Portland, argued the cause for appellant. With him on the brief was O’Connor Weber LLP.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before DeHoog, Presiding Judge, and James, Judge, and Edmonds, Senior Judge.^*

JAMES, J.

Petitioner appeals a judgment denying his petition for post-conviction relief. Petitioner was convicted of second-degree sex abuse, ORS 163.425, and sentenced to life in prison under Oregon’s repeat sex offender sentencing statute, ORS 137.719, which states, in part:

"(1) The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.

"*****

"(3) For purposes of this section:

"(a) Sentences for two or more convictions that are imposed in the same sentencing proceeding are considered to be one sentence; and

"(b) A prior sentence includes:

"(A) Sentences imposed before, on or after July 31, 2001; and

"(B) Sentences imposed by any other state or federal court for comparable offenses."

On appeal, petitioner raises two assignments of error. We write to address only petitioner’s first assignment, rejecting his second without discussion. Petitioner assigns error to the post-conviction court’s denial of relief on his claim that trial counsel was inadequate and ineffective in failing to object to the court’s imposition of a lifetime sentence under ORS 137.719 because the statutory predicates for such a sentence were absent. Specifically, petitioner argues that his two prior Texas adjudications were not "sentences" under the meaning of ORS 137.719. On review, we determine that trial counsel’s performance was constitutionally inadequate and ineffective, and that counsel’s deficiency prejudiced petitioner. Accordingly, we reverse the decision of the post-conviction court.

The facts surrounding petitioner’s conviction and sentence were set forth in our opinion from the direct appeal:

"In 2010, [petitioner], following a jury trial, was convicted of second-degree sexual abuse for knowingly subjecting an 18–year–old female to sexual intercourse without her consent. After finding [petitioner] guilty, the jury considered additional questions during the penalty phase, and the jury returned a special sentencing verdict, finding that (1) [petitioner] had prior felony convictions for indecency with a child and sexual assault; (2) prior criminal sanctions had not deterred [petitioner]; (3) [petitioner] had been persistently involved in similar criminal activity; and (4) incarceration was necessary for public safety.

"At sentencing, the state asked the court to impose the presumptive sentence of life imprisonment without the possibility of release or parole under ORS 137.719, which requires proof that [petitioner] had been sentenced for at least two prior felony sex crimes. The state offered into evidence certified copies of [petitioner]’s convictions for two prior felony sex crimes in Texas. [Petitioner] did not object to the exhibits. The exhibits established that, in 199[6], [petitioner] was convicted of indecency with a child for having sexual intercourse with a child under the age of 14. In 1997, he was convicted of sexual assault for forcibly having sexual intercourse with a woman. In each case, the court entered an ‘Unadjudicated Judgment on Plea of Guilty or Nolo Contendere and Suspending Imposition of Sentence.’ Both judgments accepted [petitioner]’s guilty pleas and concluded that the evidence in the record substantiated his guilt. Each judgment suspended the imposition of sentence and placed [petitioner] on probation. [Petitioner] received eight years of probation for the 199[6] conviction and five years of probation for the 1997 conviction. After [petitioner] completed each term of probation, the convictions were dismissed."

State v. Molette , 255 Or. App. 29, 30–31, 296 P.3d 594, rev. den. , 353 Or. 788, 304 P.3d 467 (2013).

The court imposed the presumptive sentence of life imprisonment without the possibility of parole. On direct appeal, we affirmed the petitioner’s conviction and sentence, noting that petitioner’s argument that he was not subject to the presumptive sentence under ORS 137.719(1) because the Texas adjudications were not sentences was unpreserved. Molette , 255 Or. App. 29, 296 P.3d 594. We concluded that "[a]t a minimum, based on the state’s arguments, it is reasonably disputed whether there was any error. Because it is defendant’s task to establish that the point of law is obvious, and defendant failed to establish that, defendant’s argument does not qualify as plain error." Id . at 35, 296 P.3d 594.

Petitioner filed a petition for post-conviction relief in 2014 and an amended petition later that same year. In his amended petition, petitioner argued that his

"sentence of imprisonment and post-prison supervision was and is illegal. The proceedings giving rise to the sentence resulted in a substantial denial of Petitioner’s rights in violation of ORS 138.530. Petitioner was prejudiced in that he was denied adequate assistance of counsel, under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Section 11, of the Oregon Constitution, because trial counsel failed to exercise reasonable professional skill and judgment in the following areas:

"(1) Trial counsel failed to argue at sentencing and failed to preserve the argument for appeal that the trial court lacked authority to impose a life sentence because the statutory predicates for such a sentence were absent pursuant to ORS 137.719. The two prior Texas probations do not qualify as ‘sentences.’ "

The post-conviction court concluded that trial counsel was ineffective and inadequate for "failing to raise the issue of whether the two prior Texas convictions were proper predicate convictions under ORS 137.719."¹ According to the post-conviction court, petitioner’s "trial attorney should have been aware of" our decision in Gordon v. Hall , 232 Or. App. 174, 221 P.3d 763 (2009).

In Gordon , we held that the petitioner’s probation judgment in 1967 was not a "sentence" under either Oregon or California law in 1967, and the petitioner’s prior probation in California could not be used as a factual predicate for the purpose of ORS 137.719. Id . at 187, 221 P.3d 763. Gordon did not determine which state’s laws, or whether it was both, persuaded us that the factual predicate in that case was not a sentence. This left open the question as to which state’s laws would apply if there was a conflict of laws at the time of the judgment.

The post-conviction court found that, "[c]ounsel should have raised that issue at sentencing and preserved the matter for appeal. His failure to do so at a minimum prevented the issue from being addressed by the Court of Appeals." However, the post-conviction court held that petitioner was not prejudiced by counsel’s failure to object because a challenge to the presumptive sentence under ORS 137.719 would have been unsuccessful at both the trial and appellate courts had that argument been preserved.

On appeal, both petitioner and the state, following the post-conviction court’s ruling, focus their arguments on prejudice. Petitioner argues only briefly as to the performance of trial counsel, asserting that, "[w]ith an obvious benefit to petitioner and no downside to raising the argument, trial counsel should have argued and preserved the issue at the trial court level." The state, in its briefing before us, does not challenge the post-conviction court’s conclusion that trial counsel was inadequate or ineffective, but rather "assumes for the sake of argument (without conceding) that petitioner’s trial counsel was inadequate for failing to object." Like petitioner, the state focuses on prejudice, arguing that the post-conviction court properly denied relief because an objection to the use of the Texas adjudications as predicate sentences for felony sex crimes would not have succeeded. According to the state, the term "sentence" in ORS 137.719 refers to a sentence under Oregon law, and at the time petitioner’s probations were imposed in Texas, probation was a sentence in Oregon.

"We review a post-conviction court’s judgment for errors of law appearing on the record and for evidence to support its findings." Gordon , 232 Or. App. at 176, 221 P.3d 763. To prevail on a post-conviction claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, "petitioner must establish, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment based on the law at the time of sentencing and that counsel’s failure had a tendency to affect the result of the criminal trial, that is, that petitioner suffered prejudice as a result." Chase v. Blacketter , 221 Or. App. 92, 96, 188 P.3d 427, rev. den. , 345 Or. 381, 195 P.3d 911 (2008). The "Sixth Amendment to the United States Constitution requires a similar showing. To show that counsel was inadequate under the Sixth Amendment, a petitioner must demonstrate that his counsel’s performance ‘fell below an objective standard of reasonableness’ under ‘prevailing professional norms’ and that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ " Gordon , 232 Or. App. at 180, 221 P.3d 763 (quoting Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ); Montez v. Czerniak , 355 Or. 1,...