Burdge v. Palmateer
| Decision Date | 17 April 2003 |
| Citation | 67 P.3d 397,187 Or. App. 295 |
| Parties | William Dean BURDGE, Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent. |
| Court | Oregon Court of Appeals |
Steven H. Gorham argued the cause and filed the brief for appellant.
Stacey RJ Guise, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before EDMONDS, Presiding Judge, and ARMSTRONG and BREWER, Judges.
Petitioner appeals from a judgment dismissing his petition for post-conviction relief. We write only to address petitioner's claim that his trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635.1 We conclude that petitioner has established that trial counsel's performance was constitutionally inadequate and that petitioner was prejudiced by that deficiency. Accordingly, we reverse.
Petitioner was convicted in 1995 of five criminal charges in three separate cases. The crimes were committed in the following order: Case No. 1 involved a burglary committed on October 12, 1993; Case No. 2 involved a burglary committed on January 9, 1994; and Case No. 3 involved a burglary and sex offenses committed on January 14, 1994. The cases were not tried in the order that the charged crimes were committed. Petitioner was first tried and convicted in Case No. 2. He was then tried and convicted in Case No. 1. Finally, he was tried and convicted in Case No. 3.
At a consolidated sentencing hearing, the trial court sentenced petitioner in the order in which the crimes were committed. Thus, petitioner was first sentenced in Case No. 1; the trial court then considered petitioner's conviction in Case No. 1 as supporting imposition of an ORS 137.635 sentence in Case No. 2. Finally, the court relied on petitioner's convictions in Cases No. 1 and 2 to support the imposition of ORS 137.635 sentences in Case No. 3. Petitioner's trial counsel did not object to the imposition of sentences under ORS 137.635 or assert that ORS 137.635 was inapplicable. On direct appeal, we affirmed the convictions without opinion. State v. Burdge, 137 Or.App. 437, 904 P.2d 1093 (1995).
Thereafter, we decided State v. Allison, 143 Or.App. 241, 923 P.2d 1224,rev. den., 324 Or. 487, 930 P.2d 852 (1996). In Allison, we examined the meaning of the phrase "previously been convicted" as used in ORS 137.635. We explained that, although there were several plausible interpretations of that phrase, the correct interpretation required that ORS 137.635 apply only to a person who has been convicted of one of the enumerated crimes before committing the crime for which the person was to be sentenced under that statute. Id. at 247-56, 923 P.2d 1224. Under that interpretation, because all of petitioner's crimes in this case were committed before his first conviction, he was not subject to the imposition of sentences under ORS 137.635 for any of the crimes for which he was eventually convicted. Petitioner sought post-conviction relief, asserting, among other claims, that his trial counsel provided constitutionally inadequate legal assistance by failing to argue that ORS 137.635 did not apply to him. The post-conviction court denied relief.
rev. den., 318 Or. 24, 862 P.2d 1304 (1993).
Petitioner reasserts on appeal that trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635. Defendant responds that petitioner's trial counsel was not inadequate because, at the time of petitioner's sentencing, no appellate court had interpreted the statutory language "previously been convicted." Accordingly, in defendant's view, the meaning of the statute was not "clearly settled," and reasonable counsel could have disagreed about whether to make an argument for the specific interpretation ultimately held to apply in Allison. See Wells v. Peterson, 315 Or. 233, 236, 844 P.2d 192 (1992)
. Further, in defendant's view, petitioner was correctly sentenced based on an understanding of the law at the time of sentencing in light of a then-recent Supreme Court case, State v. Bucholz, 317 Or. 309, 855 P.2d 1100 (1993), and counsel could not have been inadequate for not raising the issue.
In Bucholz, the question was whether, when a person is sentenced at the same time for multiple convictions arising out of different criminal episodes, the offenses first sentenced become a part of the defendant's criminal history for purposes of the subsequently sentenced convictions. The sentencing guidelines provided that "[a]n offender's criminal history is based upon the number of * * * convictions * * * in the offender's criminal history at the time the current crime or crimes of conviction is [sic] sentenced." The defendant in Bucholz pleaded guilty to two unrelated felonies that had been committed and charged at separate times. He was sentenced for both offenses in the same hearing. The court first sentenced the defendant on the first committed crime. It then determined that, under the sentencing guidelines, the first conviction was a part of the defendant's criminal history for purposes of sentencing on the second offense. We reversed the sentencing court, holding that "the legislative history demonstrates a legislative intent that convictions sentenced at the same time are present convictions that are not counted in the criminal history, irrespective of rules governing prior criminal history." State v. Bucholz, 113 Or.App. 705, 707, 834 P.2d 456 (1992) (emphasis in original). The Supreme Court rejected our reasoning that criminal history was not to include convictions that were currently being sentenced. It explained:
Bucholz, 317 Or. at 314, 855 P.2d 1100 (emphasis added).
The text of ORS 137.635 provides for a sentence to be imposed under that section "[w]hen * * * a court sentences a convicted defendant who has previously been convicted" of certain felonies listed in ORS 137.635(2). Defendant contends that, in light of the Supreme Court's interpretation of the sentencing guidelines in Bucholz, it was sound reasoning for petitioner's trial counsel to anticipate that ORS 137.635 would be interpreted similarly, that is, that a defendant would be treated as having "previously been convicted" if the conviction occurred before sentencing. As noted in Allison, the phrasing "previously been convicted" plausibly could refer to a defendant who, at any time before sentencing, has been found guilty of a crime listed in ORS 137.635(2). 143 Or.App. at 247, 923 P.2d 1224; id. at 259, 923 P.2d 1224 (Leeson, J., concurring). Although a majority of this court ultimately rejected that interpretation in Allison, in light of Bucholz, which also involved the question of the effect of prior convictions on an enhanced sentence, we agree that trial counsel could reasonably have anticipated that, given the opportunity, the Supreme Court might interpret ORS 137.635 similarly. But that conclusion does not end our inquiry.
As defendant points out, at the time that the court sentenced petitioner, no reported appellate decision had addressed the issue decided by Allison. Although the administrative rule addressed in Bucholz involved sentencing, we held in Allison that the court's analysis in Bucholz was not applicable to an analysis of ORS 137.635. Allison, 143 Or.App. at 255, 923 P.2d 1224. The meaning of the phrase "previously been convicted" as used in ORS 137.635 was an open question. Furthermore, as we explained in Allison, the statute was susceptible to more than one plausible interpretation. The question presented in this case, then, is how reasonable counsel must go about the task of construing and arguing for the construction of a statute that has two or more plausible meanings and, thus, is ambiguous.2
844 P.2d 192. That interpretation was a plausible reading of the statute. Because the statutory phrase had not yet been...
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