Vasilash v. Cain

300 Or.App. 542

454 P.3d 818

Peter Georgevich VASILASH, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A166487

Court of Appeals of Oregon.

Submitted May 3, 2019.

November 14, 2019

Peter Georgevich Vasilash filed the briefs pro se.

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

Before DeHoog, Presiding Judge, Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore Petitioner was convicted after a jury trial of various offenses, the most serious of which was first-degree kidnapping, after an episode of domestic violence involving his girlfriend, V, that began at a Portland bar. After his direct appeal was rejected,¹ petitioner sought post-conviction relief (PCR) alleging inadequate and ineffective assistance of trial and appellate counsel under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. The post-conviction court denied all of his claims, and petitioner appeals.² He raises six assignments of error. In his first assignment, he contends that the court erred in concluding that, although trial counsel’s failure to investigate the owner of the bar and call her as a witness at petitioner’s criminal trial was inadequate assistance of counsel, petitioner failed to prove that he was prejudiced by that deficient performance. See Richardson v. Belleque , 362 Or. 236, 255, 406 P.3d 1074 (2017) ("A petitioner seeking post-conviction relief based on inadequate assistance of counsel in violation of the right to adequate counsel derived from Article I, section 11, of the Oregon Constitution, must prove that his or her trial counsel failed to exercise reasonable professional skill and judgment and that, because of that failure, the petitioner suffered prejudice." (Internal quotation marks omitted.)).³ We agree with petitioner that the bar owner’s testimony "could have tended to affect" the outcome of petitioner’s prosecution for first-degree kidnapping (Counts 1 and 2), Green v. Franke , 357 Or. 301, 323, 350 P.3d 188 (2015) (internal quotation marks and emphasis omitted), and, therefore, the post-conviction court erred in concluding that petitioner did not prove that he was prejudiced as to those convictions. We therefore reverse and remand with instructions for the post-conviction court to enter judgment allowing post-conviction relief as to that aspect of petitioner’s PCR claim.

Petitioner’s fourth and sixth assignments of error raise procedural irregularities with respect to the post-conviction court’s handling of petitioner’s Church motion⁴ and denial of his motion to amend his PCR petition; those arguments also have implications for petitioner’s fifth assignment of error, in which petitioner asserts that the court erred in denying his PCR claim with respect to an allegation of inadequate assistance of counsel that petitioner raised in the amended petition that the court disallowed. Given that we must remand on petitioner’s first assignment of error, and in light of the Supreme Court’s intervening decision in Bogle v. State of Oregon , 363 Or. 455, 423 P.3d 715 (2018), discussed below, we also instruct the court on remand to allow petitioner an opportunity to amend his PCR petition to add the claims raised in his Church motion—that is, the claims that were not alleged in the petition filed by post-conviction counsel and adjudicated by the court. We reject petitioner’s second and third assignments of error without discussion.

I. FACTUAL BACKGROUND

We describe the historical and procedural facts in accordance with the post-conviction court’s findings and supplemented with undisputed facts from the record. See Logan v. State of Oregon , 259 Or. App. 319, 327, 313 P.3d 1128 (2013), rev den , 355 Or. 142, 326 P.3d 1207 (2014) ("We are bound by the post-conviction court’s findings if there is evidence in the record to support them."). When describing the evidence presented at petitioner’s criminal trial, we focus primarily on the evidence related to the first-degree kidnapping convictions that are the subject of petitioner’s first assignment of error. We supplement the facts, as necessary, in our analysis and resolution of the issues considered on appeal.

Petitioner was charged with two counts of first-degree kidnapping (Counts 1-2), second-degree kidnapping (Count 3), attempted second-degree assault (Count 4), four counts of coercion (Counts 5-8), fourth-degree assault (Count 9), strangulation (Count 10), recklessly endangering another person (Count 11), and harassment (Count 12). Counts 1 through 10 were alleged as constituting domestic violence.

At petitioner’s trial, the victim, V, was a reluctant witness.⁵ She testified that she and petitioner had been in an intimate relationship for 3 years, although petitioner was married to someone else. In the early morning hours of May 23, 2010, V and petitioner were together at the Ararat bar in Portland when they got into an argument. V testified at the criminal trial that petitioner may have hit her while at the bar. She wanted to go home but he took her to a park. She did not remember whether he hit her in the car, but she was feeling pain in her face and neck. She remembered trying to get out of the car at the park; she said it was possible that she was unconscious part of the time when she was in the car. She wanted to go to the hospital, but, instead, petitioner took her to her home. She went to a neighbor and asked her to call an ambulance.

Officer Jensen answered the call for assistance and met V at the neighbor’s house. At the criminal trial, he testified that V spoke in broken English and looked as though she had been seriously assaulted, with serious swelling around her head and face, along with dried blood on her face, and a couple of swollen fingers. He also noticed that a large chunk of hair had been pulled out of the back of her head that was slightly bloody. Her hair was wet and matted and her clothes dirty and somewhat damp, although it had not been raining that night. Jensen said that V seemed fearful and very much in pain. When he asked, she immediately said that she wanted to go to the hospital.

At the hospital, Jensen took a statement from V, with Butkov, a certified nursing assistant, acting as an English/Russian translator.⁶ Butkov testified at trial as to what V had told her that morning at the hospital. V told Butkov that petitioner had picked her up from a bus stop and they went to the Ararat. There, a man came up to petitioner and told him that he had had relations with V, which angered petitioner. He got into a confrontation with the other man and was asked to leave. Petitioner and V went outside, and petitioner struck V in the head. The bouncers asked them to leave. Petitioner grabbed V, pushed her into the car, and hit her a couple of more times. The bouncers tried to get her out of the car. She asked petitioner to take her home and he said that he would. He then took her to the park. She tried to escape when they stopped at the park, but he caught her, threw her down, and struck her in the face and abdomen. She tried to run away but he grabbed her by the hair and dragged her back to the car, continuing to beat her. She was in and out of consciousness. He put her back in the car, struck her a few times on the way home, then dumped her out in front of her house. She went to a neighbor’s house and the neighbor convinced her to call the police. V eventually gave petitioner’s name as her assailant.

Petitioner was arrested and interviewed by detectives later that morning. A videotape of the interview was played for the jury. In that interview, petitioner denied pushing V into the car or hitting her. He told the detectives that he and V had been drinking together at the bar, and he took V home after being told by security to leave the bar. Later, he said that when they got to her house they sat and talked for two hours, but he did not remember what they talked about.

Over petitioner’s objection, the state also presented the testimony of two grand jurors who testified to V’s sworn statements before the grand jury. As relevant here, the foreperson testified that V had told the grand jury the following version of events. Petitioner hit her in the face while they were still at the bar. Bar staff asked if she wanted to call the police, but she said that she did not because she was afraid. She went outside to get her belongings from petitioner’s car.

She testified that bar staff told them to get in the car or they would call the police. She did not remember whether petitioner pushed her into the car. According to the foreperson, V testified to the grand jury that "she didn’t want to get in the vehicle in the first place on the first part of the trip because she was afraid she was going to get hit again."

V’s neighbor, Friend, also testified at petitioner’s criminal trial. She stated that V came to her door early in the morning and told Friend that her boyfriend had beaten her and tried to kill her. Her face was swollen and there was blood on the side of her mouth. V told Friend that she and petitioner had been drinking at a club and petitioner had taken her to another place and beat her first in a building and then in a park. She asked Friend to call an ambulance.

Additionally, a detective and a criminalist testified as to what they saw when they examined petitioner’s car, and the state presented photos, medical records, and other physical evidence of V’s injuries.

Petitioner did not present any witnesses at the criminal trial. The defense’s theory was that V was upset because petitioner had ended their affair and the confrontation turned physical on both sides after they left the bar. V then exaggerated what had happened and later felt bad about that and did not want to participate in the prosecution. During...