Watterson v. Highberger

1

329 Or.App. 335

ELIJAH JEREMIAH WATTERSON, Petitioner-Appellant, v. Josh HIGHBERGER, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.

A177937

Court of Appeals of Oregon

November 29, 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This is a Nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 October 31, 2023

Marion County Circuit Court 19CV48415; Claudia M. Burton, Senior Judge.

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, fled the briefs for respondent.

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

KAMINS, J.

Following a deadly shootout, petitioner pleaded guilty to two counts of attempted aggravated murder with a firearm, one count of felon in possession of a firearm, and one count of riot with a firearm. He now appeals a judgment denying him post-conviction relief (PCR), asserting that his trial counsel rendered inadequate assistance of counsel and that his guilty pleas were not knowing, intelligent, and voluntary. We affirm.

Petitioner first asserts that his trial counsel did not adequately advise him of an available defense-"defense of others"-thus failing to exercise reasonable professional skill and judgment. However, the PCR court made a finding based on trial counsel's declaration, that counsel did discuss a defense of others strategy with petitioner and informed petitioner that, in counsel's view, the surveillance video evidence made such a defense unlikely to succeed. We are bound by the court's factual finding that counsel did inform petitioner of a defense of others defense because evidence in the record supports it. Berg v. Nooth, 273 Or.App. 97, 98, 359 P.3d 279 (2015), rev den, 358 Or. 529 (2016). And because this finding negates petitioner's claim, we must reject petitioner's first argument.

Petitioner goes on to argue that, even if trial counsel did discuss the defense of others strategy with him, counsel's allegedly inaccurate assessment of the strength of the defense represented a failure to exercise reasonable professional skill and judgment. Assuming that claim is preserved, it fails on the merits. Counsel based his assessment of the defense on the surveillance footage, which demonstrated that petitioner acted as an aggressor and failed to take opportunities to retreat from the conflict, and that petitioner's friend had defended himself by pulling out his own firearm. Counsel reasonably concluded that the jury would have viewed the footage as supporting a theory that petitioner acted out of revenge, rather than a desire to protect his friend. See Antoine v. Taylor, 368 Or 760, 768, 499 P.3d 48 (2021) ("To prove deficient performance, it is not enough to show that another lawyer would have tried the case differently or that a reviewing court would disagree with that counsel's decision." (Internal quotation marks omitted.)).

In his second assignment of error, petitioner argues that his pleas were not knowing, intelligent, and voluntary in light of counsel's failure to adequately advise him of the defense-of-others defense. However, our conclusion that counsel was not inadequate in that matter renders petitioner's invalid-plea claim without merit. See Cazun v. State of Oregon, 327 Or.App. 326, 331, 535 P.3d 790 (2023) ("Petitioner's *** argument is that because she did not receive proper advice from her trial attorney, she could not have entered a knowing, voluntary, and intelligent plea. Our conclusion that petitioner did not establish...