Bacon v. Cain

• Docket Number: A176246
• Decision Date: 30 August 2023
• Citation: Bacon v. Cain, 327 Or.App. 673, 536 P.3d 634 (Or. App. 2023)
• Parties: David Lawrence BACON, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

327 Or.App. 673

536 P.3d 634

David Lawrence BACON, Petitioner-Appellant,

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

A176246

Court of Appeals of Oregon.

Submitted April 5, 2023

August 30, 2023

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent.

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

KAMINS, J.

Petitioner appeals from a judgment denying his petition for post-conviction relief (PCR), raising two assignments of error. We focus our discussion on petitioner's second assignment, in which he argues that his trial counsel was inadequate for failing to present mitigating evidence at sentencing. We reverse and remand as to the second assignment of error and otherwise affirm.

Petitioner pleaded guilty to three counts of conspiracy to deliver heroin and one count of conspiracy to deliver methamphetamine and proceeded to open sentencing. At sentencing, the court considered aggravating factors in determining the length of petitioner's sentence and whether he was eligible for alternative incarceration programming and earned reductions, including the value and weight of the drugs involved, petitioner's extensive criminal history, and petitioner's negative impact on the community. Counsel for petitioner offered only two points in favor of allowing programming: first, that petitioner was 52 years old, and second, that those programs offered petitioner the opportunity to treat his drug addiction. Petitioner also made a brief statement about his recovery, his contributions to the community, and his relapse. The state did not object to programming for the second half of petitioner's sentence. Nevertheless, the trial court denied petitioner all alternative incarceration programming and earned reductions.

Petitioner appealed, and his appellate counsel filed a Motion for Entry of Amended Judgment with the trial court, alerting it to the fact that it had failed to find "on the record in open court substantial and compelling reasons" to deny programming, as required by ORS 137.750(1). In response, the state reminded the trial court of the amount of drugs involved and objected to "any modification of this sentence." The court granted the motion and held a hearing, which gave trial counsel another opportunity to investigate and develop the record with additional mitigating evidence. Despite that opportunity, trial counsel offered no additional evidence and, instead, relied on her argument from petitioner's first sentencing hearing. The trial court amended its judgment reaffirming the denial of petitioner's eligibility for all alternative incarceration programming.

Petitioner now seeks post-conviction relief from his sentence. The PCR court denied relief, finding that petitioner failed to prove that any inadequate assistance of counsel prejudiced him because "[t]estimony that Petitioner was doing well but had made a mistake and relapsed would not have carried any weight with the sentencing judge."

We review post-conviction proceedings for errors of law. Hale v. Belleque , 255 Or App 653, 660, 298 P.3d 596, adh'd to on recons., 258 Or App 587, 312 P.3d 533, rev. den. , 354 Or. 597, 318 P.3d 749 (2013). To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner must show by a preponderance of the evidence facts demonstrating that (1) counsel failed to exercise reasonable professional skill and judgment, and (2) counsel's failure had a tendency to affect the result of his trial. Montez v. Czerniak , 355 Or. 1, 7, 322 P.3d 487 (2014). Those standards are "functionally equivalent" to the standards for determining whether counsel was ineffective under the Sixth and Fourteenth Amendments to the United States Constitution. Id. at 6-7, 322 P.3d 487 ; see also Strickland v. Washington , 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Petitioner argues on appeal that counsel was deficient in failing to present mitigating evidence at sentencing. In particular, he identifies two individuals who were available to testify on his behalf: Ray Gozly, a former supervisor and employer of petitioner, and Shawn Bower, executive director of a nonprofit organization that assists individuals living with drug addictions. Gozly declared that petitioner graduated from a drug rehabilitation program, mentored at-risk youth, was attending college, and was starting a business. Gozly also declared that, in his work, petitioner was an "exceptionally reliable employee," a "hard worker," and was "proficient, reliable, and diligent in doing good work." Gozly further declared that petitioner demonstrated compassion towards others "in a way that was noticeable, memorable, and consistent." Bower highlighted that petitioner was a "regular participant" in support networks, "worked on his recovery, and did very well for an extended period of time."

Bower also declared that petitioner "has a very strong mind, and he uses that to support others." Bower further declared that petitioner was a "positive impact on society" for several years until petitioner stopped attending his support group, a "mistake" Bower said "many people struggling in recovery" make "once they are doing well." Counsel for petitioner did not present any evidence from Bower or Gozly for the court's consideration at either sentencing hearing.¹

We conclude that counsel for petitioner performed deficiently by failing to offer any mitigating evidence other than petitioner's testimony. Petitioner was facing a 228-month sentence, and his case involved several aggravating factors that, alone, weighed in favor of finding substantial and compelling reasons to deny programming. However, counsel for petitioner called no witnesses and presented no evidence. Even with the opportunity of a second sentencing hearing, and the knowledge that the trial court was not persuaded by counsel's limited argument and would deviate from the prosecutor's recommendation to allow programming, trial counsel still did not present any mitigating evidence. Instead, she relied on a strategy that had already failed. That choice was not reasonable. See Andrus v. Texas , ––– U.S. ––––, 140 S. Ct. 1875, 1881, 207 L. Ed. 2d 335 (2020) (defense counsel provided deficient performance at penalty phase where counsel performed almost no mitigation investigation and overlooked vast tranches of mitigating evidence); Montez , 355 Or. at 24, 322 P.3d 487 (recognizing that "the applicable standard is whether trial counsel exercised reasonable skill and judgment" and that petitioner's identification of a different mitigation strategy "is not a ground for post-conviction relief if counsel acted reasonably in presenting the defense that they did"); Pike v. Cain, 303 Or App 624, 636, 465 P.3d 277, rev. den. , 367 Or. 75, 472 P.3d 268 (2020) (counsel's failure to fully investigate mitigating factors, including the petitioner's military record, was ineffective assistance).

Turning to prejudice, as an initial matter, the PCR court erred in concluding that petitioner failed to establish prejudice because the sentencing judge was so focused on the amount of drugs...