Barnett v. Brown

• Decision Date: 20 April 2022
• Docket Number: A174841
• Citation: 319 Or.App. 257,509 P.3d 748
• Parties: Trivonne Jay BARNETT, Petitioner-Appellant, v. Nichole BROWN, Superintendent, Columbia River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

319 Or.App. 257

509 P.3d 748

Trivonne Jay BARNETT, Petitioner-Appellant,

v. Nichole BROWN, Superintendent,Columbia River Correctional Institution, Defendant-Respondent.

A174841

Court of Appeals of Oregon.

Submitted March 4, 2022.

April 20, 2022

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

PER CURIAM

Police found incriminating evidence in petitioner's backpack when they searched it after placing him into custody. The search was warrantless, and petitioner had an arguably meritorious argument that no warrant exception adequately permitted the search. Ultimately, petitioner pleaded guilty, then filed for post-conviction relief, arguing that trial counsel was ineffective and inadequate for failing to litigate a motion to suppress prior to petitioner accepting the plea offer from the state. The post-conviction court concluded that trial counsel was not ineffective. We affirm.

Generally, to demonstrate inadequate assistance, a petitioner must show that "every reasonable defense attorney would have" pursued a particular strategy. Hagberg v. Coursey , 269 Or. App. 377, 386-87, 344 P.3d 1118 (2015). When addressing a plea offer, "defense attorneys must make careful strategic choices in balancing opportunities and risks." Premo v. Moore , 562 U.S. 115, 124, 131 S. Ct. 733, 178 L. Ed. 2d 649 (2011). Accordingly, "strict adherence to the Strickland standard [is] is all the more essential when reviewing the choices an attorney made at the plea bargain stage." Id. at 125, 131 S. Ct. 733. We do not view counsel's performance through " ‘the distorting lens of hindsight.’ " Owen v. Taylor , 287 Or. App. 639, 651, 404 P.3d 1021 (2017) (quoting Johnson v. Premo , 361 Or. 688, 700, 399 P.3d 431 (2017) ). "[A]n after-the-fact assessment [is] counter to the deference that must be accorded counsel's judgment and perspective when the plea was negotiated, offered, and entered." Moore , 562 U.S. at 126, 131 S.Ct. 733.

Here, the post-conviction court considered the affidavit of defense counsel, which stated:

"While a plea offer had been extended to [petitioner], I did not believe it was a reasonable offer and informed the Deputy District attorney of my dissatisfaction. I encouraged the DDA to make a realistic offer and I advised him that I thought there was a meritorious argument that the search of the vehicle and backpack was improper and subject to a motion to suppress. We exchanged arguments and authorities on the issue while we also discussed settlement. (See exhibits 2, 3, 4, and 5 attached which are true and accurate copies of emails exchanged.) I advised [petitioner] that I would file motions to suppress if we proceeded to trial as well as

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