Boyles v. Myrick, A154887

• Decision Date: 30 November 2016
• Docket Number: A154887
• Citation: 385 P.3d 1227,282 Or.App. 517
• Parties: Michael Lee BOYLES, Petitioner-Appellant Cross-Respondent, v. John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent Cross-Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 517

385 P.3d 1227

Michael Lee BOYLES, Petitioner-Appellant Cross-Respondent,

v.John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent Cross-Appellant.

A154887

Court of Appeals of Oregon.

Submitted August 31, 2016.

November 30, 2016

James N. Varner filed the briefs for appellant-cross-respondent.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent-cross-appellant.

Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

LAGESEN, J.

Petitioner, who formerly worked as a juvenile probation officer, was convicted by a jury of 45 offenses, including multiple sex offenses involving the minors whom he supervised. He petitions for post-conviction relief on a variety of grounds, including that his trial lawyer was constitutionally inadequate and ineffective in numerous respects. In a detailed opinion, the post-conviction court concluded that the bulk of petitioner's allegations did not warrant post-conviction relief. However, the court determined that petitioner was entitled to relief on his claim that trial counsel was inadequate for not excepting to the trial court's failure to deliver a jury concurrence instruction with respect to Count 46 of the indictment, which charged petitioner with third-degree sexual abuse. Specifically, relying on our decision in Hale v. Belleque , 255 Or.App. 653, 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), the court concluded that, because of the similarity between the allegations underlying Count 42, which charged petitioner with sexual abuse in the second degree, and those underlying Count 46, trial counsel was inadequate for not requesting a specific concurrence instruction informing the jury that at least ten jurors had to agree on the specific factual occurrence that formed the basis for the conviction on Count 46. The court further concluded, again relying on Hale , that petitioner was prejudiced by trial counsel's inadequacy because, under Hale , "[p]rejudice inures in that it is not possible on the record to determine which underlying facts formed the basis for the conviction." The court then determined that merger of Count 42 and Count 46 was the appropriate remedy for trial counsel's inadequacy with respect to the omission of a concurrence instruction.

Both petitioner and defendant, the superintendent of Two Rivers Correctional Institution, appeal.¹ Petitioner assigns error to the post-conviction court's denial of relief with respect to a number of his other alleged grounds for relief. The superintendent assigns error to the post-conviction court's grant of relief as to petitioner's jury concurrence instruction claim. We reject petitioner's assignments of error without written discussion and, for the reasons that follow, conclude that the trial court erred in granting relief on petitioner's claim regarding the omission of a jury concurrence instruction. We therefore reverse and remand for entry of a judgment denying the petition for post-conviction relief in its entirety.

As noted, the post-conviction court granted relief based on its determination that trial counsel was constitutionally inadequate and ineffective for not excepting to the trial court's failure to deliver a jury concurrence instruction with respect to Count 46. According to the verdict form, Count 46 was based on petitioner's "[s]exual contact with penis of [JD], then under 18, 8/25/02-11/5/02, dead end road off 82nd St." The court noted that Count 46 was similar to Count 42—which, according to the verdict form, was based on petitioner's "[d]eviate sexual intercourse (oral sex) with [JD], without consent, 8/25/02-11/5/02, dead end road off 82nd St"—and, as we understand the court's reasoning, concluded that reasonable trial counsel would have excepted to the trial court's failure to give a jury concurrence instruction as to Count 46 because there were multiple factual scenarios as to how the alleged contact "with [the] penis of [JD]" could have occurred during the 82nd Street incident—either through the same oral contact alleged in Count 42, or through a touching by hand over, and then under, the victim's clothing. The post-conviction court then concluded that, under Hale , petitioner had established prejudice as a matter of law, because it was not possible to determine how the jury reached its verdict.

We review the post-conviction court's judgment for legal error, accepting as true the court's supported factual findings. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). To be entitled to relief on the claim at issue, petitioner was required to prove two elements: that his trial lawyer failed to exercise reasonable professional skill and judgment by not excepting to the trial court's failure to deliver a jury concurrence instruction with respect to Count 46, and that petitioner was prejudiced by that deficiency in counsel's performance.

Mellerio v. Nooth, 279 Or.App. 419, 428–29, 379 P.3d 560 (2016). For purposes of this appeal, we assume without deciding that the post-conviction court was correct in ruling that trial counsel performed deficiently. Nevertheless, in the light of our recent decision in Mellerio , which altered the Hale prejudice analysis on which the post-conviction court relied, we conclude that the post-conviction court erred in determining that petitioner was prejudiced as a result of any deficiency in trial counsel's performance.

In Mellerio , as here, we addressed claims that the petitioner's trial counsel had been inadequate and ineffective for not requesting jury concurrence instructions with respect to several of the charges against the petitioner. In so doing, we concluded that the Supreme Court's decision in State v. Ashkins , 357 Or. 642, 357 P.3d 490 (2015), required a "considerably more nuanced" approach to assessing whether the omission of a jury concurrence instruction prejudiced a post-conviction petitioner "than the ostensibly categorical construct we applied in Hale ." Mellerio , 279 Or.App. at 434, 379 P.3d 560. That "more nuanced" approach requires a practical focus on the record in the case, including the parties' theories of the case and the evidence presented, to assess whether the omission of a concurrence instruction had a tendency to affect the verdict in the criminal case. Id. (holding that the Ashkins method for determining whether the erroneous omission of a concurrence instruction is harmless in the context of a direct appeal governs the analysis of whether a post-conviction petitioner was prejudiced by the omission of a concurrence instruction as a result of trial counsel's inadequacy); see Wilson v. Premo , 280 Or.App. 372, 386, 381 P.3d 921, 929 (2016) (same).

Applying the Ashkins approach here, we are persuaded that petitioner was not prejudiced by the omission of a concurrence instruction as to Count 46. The record, viewed as a whole, refutes the possibility that the jurors were divided as to the factual occurrence that supplied the basis for that conviction, notwithstanding the trial court's failure to deliver a jury concurrence instruction specifically addressing Count 46.

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