Berg v. Nooth, 09077474P
| Citation | 359 P.3d 279,273 Or.App. 97 |
| Decision Date | 19 August 2015 |
| Docket Number | 09077474P,A147322. |
| Parties | Matthew D. BERG, Petitioner–Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent. |
| Court | Court of Appeals of Oregon |
Rankin Johnson IV, Portland, argued the cause and filed the brief for appellant.
Rolf C. Moan, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
In this post-conviction action, petitioner sought to set aside his no-contest plea to charges of attempted murder, first-degree kidnapping, and second-degree assault. Petitioner claimed that his plea was not voluntary because the prosecutor had threatened—if petitioner did not enter a guilty or no-contest plea—to prosecute petitioner's family members for witness tampering and to secure a judgment against petitioner's daughter for the $150,000 security amount associated with petitioner's release. The post-conviction court denied relief after determining, first, that petitioner had not proved that the prosecutor engaged in misconduct and, second, that petitioner's plea was “knowing and volunt[ary], not coerced.” On appeal, petitioner argues that the post-conviction court erred in denying relief because he “only accepted the plea offer to protect his family from prosecution” and to avoid subjecting his daughter to a $150,000 judgment. For the reasons that follow, we conclude that the post-conviction court did not err in determining that petitioner's plea was not impermissibly coerced. Accordingly, we affirm.
“We review post-conviction proceedings for legal error” and “are bound by the post-conviction court's findings of fact if there is evidence in the record to support them.” Clark v. State of Oregon, 267 Or.App. 544, 549, 340 P.3d 757 (2014), rev. den.,357 Or. 143, 350 P.3d 201 (2015). When the post-conviction court has not made explicit findings resolving all of the parties' factual disputes, we presume that the court implicitly resolved those facts “consistently with its ultimate conclusion,” so long as the implicit factual findings are supported by the record. Pereida–Alba v. Coursey, 356 Or. 654, 670–71, 342 P.3d 70 (2015). We describe the pertinent facts in accordance with those standards of review.
One morning in October 2006, ML, the victim in the underlying criminal case, called police to report that petitioner had held her against her will, in her bedroom, from early the previous evening until daybreak that morning, when she had escaped. ML described a prolonged and severe physical attack that included beating with fists, a belt, and a table leg, as well as strangulation to the point of unconsciousness.
Sheriffs deputies arrested petitioner the next day. After being read his Miranda rights and acknowledging that he understood them, petitioner said that he “wasn't there,” was not “even in town” and “didn't touch her.” During an interview the following day, petitioner again denied that he had been at ML's home on the night of the reported assault.
In December 2006, ML told a deputy sheriff that petitioner “had called her from jail requesting she call the District Attorney and say the assault never happened.” She also asserted that petitioner's family members had “called numerous times trying to get her to drop charges so [petitioner] could get out of jail.” The deputy then listened to recordings of two phone calls that petitioner had made to ML from the jail on one day in November. In one call, petitioner asked ML “several times to call or write the District Attorney and state the assault never happened.”
Petitioner subsequently was indicted on multiple felony and misdemeanor charges associated with the October 2006 attack. At some point, the court set a security amount of $150,000, and petitioner was released after his daughter posted a $15,000 deposit.1 The parties engaged in plea negotiations in the months leading up to the July 2007 trial; the prosecutor made at least two offers, but the parties did not reach any agreement.
During a conference with the lawyers on the first day of trial, the court indicated its understanding that the state planned to file a “tampering with a witness” charge against petitioner. The prosecutor, Forster, said that she had not yet filed that charge, but that the state was preparing for petitioner to be arraigned on the charge later that day.2
Before the jury was seated, Forster moved the court for an order holding ML as a material witness. Forster asserted that, although ML had cooperated with detectives up until the Friday before the date set for trial, she had refused to cooperate with the state since then. The court explained the state's request to ML, who was present at the courthouse. ML said that she wanted to “amend [her] story” and asked the court if that would result in her going to jail. The court explained that the district attorney, not the court, would decide whether ML should be arrested if she changed her story. The court indicated that it would appoint counsel for ML and told her to remain in the courthouse until her attorney arrived. Voir dire took up the remainder of that court day.
In their opening statements, both Forster and petitioner's defense attorney, Scales, discussed how ML's description of the October 2006 events had changed over time. The state then began its case by playing a recording of a 9–1–1 call that had been made immediately following the alleged assault. Next, the state called a witness who testified that she had seen ML crying and barefoot on the morning after the attack, saying that “she needed to call the cops because [petitioner] was beating on her.”
The state's next witness was ML, who acknowledged that she did not want to be in court and was appearing in response to a subpoena. After questioning ML about various events that occurred between the October incident and the start of trial, Forster asked ML about her initial reports to police about the attack. ML testified that she had then “added more to the story than what really did happen” between her and petitioner. Forster asked ML if she had “added on” the part about petitioner beating her with a belt, and ML said no, and she implicitly acknowledged that petitioner had done that. ML then testified that petitioner had put his hands over her nose and mouth, and said that she had not exaggerated that part of her report to police. Similarly, ML testified that she had not been exaggerating when she reported that petitioner hit her all over her head and body many times; nor had she exaggerated when she reported that petitioner wrapped a bandana around her neck, tried to choke her, kicked her, and said that he was going to kill her. But ML testified that petitioner had not beaten her with a table leg. She said that she initially had accused petitioner of that because she “wanted him to hurt like [she] hurt.”
The court took a lunch recess after ML gave that testimony. Scales then informed the court that the parties had reached a plea agreement. The court was presented with a signed plea petition in which petitioner pleaded no contest to charges of attempted murder, first-degree kidnapping, and second-degree assault. The court read the petition and asked petitioner whether he had had a chance to review it with his attorney. Petitioner said that he had. The court reiterated the rights that petitioner was waiving by entering a no-contest plea, and petitioner indicated his understanding. Petitioner also responded, “No,” when asked whether anybody had made “any threats or promises to [him] other than this negotiation to enter this plea.”
At that point, the court indicated that some promises had been made that would be placed on the record. Forster agreed and explained:
After engaging in further colloquy with petitioner, the court accepted petitioner's no-contest plea.
Petitioner challenged the voluntariness of his plea in a post-conviction proceeding that he initiated in 2009. In his second amended petition for post-conviction relief, petitioner alleged, among other things, that he had entered a “coerced plea” because the state had threatened witnesses. Specifically, he claimed that prosecutors had threatened to arrest members of petitioner's family for witness tampering if petitioner did not plead guilty; he also claimed that Forster had threatened to “go after” petitioner's family members “for the full amount of the $150,000 bail.” Petitioner presented evidence in support of that claim during the post-conviction proceeding, including testimony from his mother, who asserted that Forster had threatened petitioner's family members with arrest.
In response, defendant superintendant argued that Forster had not threatened ML or petitioner's family members, but had “merely informed witnesses that they could face perjury charges if they lied under oath at petitioner's criminal trial.”...
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