Chase v. Blacketter

• Decision Date: 02 July 2008
• Docket Number: A131128.,CV050608.
• Citation: 188 P.3d 427,221 Or. App. 92
• Parties: Calvin Gilbert CHASE, Petitioner-Appellant, v. Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

188 P.3d 427

221 Or. App. 92

Calvin Gilbert CHASE, Petitioner-Appellant, v. Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

CV050608.

A131128.

Court of Appeals of Oregon.

Submitted October 12, 2007.

Decided July 2, 2008.

David E. Groom, Salem, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Stacey R. Guise, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

WOLLHEIM, J.

Petitioner appeals a judgment denying his petition for post-conviction relief, arguing that his trial counsel provided constitutionally inadequate assistance in several respects. We write to address only petitioner's contention that trial counsel was inadequate by failing to object to the imposition of consecutive sentences on the ground that the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), apply to consecutive sentences. We reject petitioner's remaining contentions without discussion. We conclude that petitioner failed to demonstrate that trial counsel, exercising reasonable professional skill and judgment at the time of sentencing, would have objected to the court's imposition of consecutive sentences on Apprendi and Blakely grounds. Accordingly, we affirm.

The relevant facts are undisputed. Petitioner was charged with five counts of sodomy in the first degree and two counts of sexual abuse in the first degree for conduct involving two victims. Pursuant to a plea agreement, petitioner pleaded guilty to four counts of sodomy in the first degree and one count of sexual abuse in the first degree, and the remaining charges were dismissed. On October 7, 2004, the trial court imposed consecutive sentences of 100 months on each of the sodomy convictions and a concurrent sentence of 75 months on the sexual abuse conviction. The court imposed the consecutive sentences based on its own findings—specifically, the court reasoned that "[g]iven the age of the victims, their vulnerability and the long-time damage caused by [petitioner's] behavior," consecutive sentences were appropriate under ORS 137.123(5)(a) and (b).¹ Petitioner's trial counsel did not object to the imposition of consecutive sentences.

Prior to sentencing in this case, the United States Supreme Court had decided Apprendi and Blakely. In Apprendi, the Court held that, other than the fact of a prior conviction, any unadmitted fact that increases the penalty for a crime beyond the legislatively prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Later, in Blakely, the Court held that "exceptional" sentences—the equivalent of Oregon's departure sentences— based on judicial findings of fact required to impose a sentence outside of the presumptive range established by state sentencing guidelines ran afoul of the rule announced in Apprendi. Neither case involved consecutive sentencing.

In October 2007—three years after sentencing in this case—the Oregon Supreme Court addressed the application of Apprendi and Blakely to consecutive sentences. In State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, ___ U.S. ___, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008), the court held that the Sixth Amendment right to a jury trial entitles a criminal defendant to a jury finding regarding the factual predicate for the imposition of consecutive sentences. After Ice, it is now apparent that the imposition of consecutive sentences in this case—based on judicial factfinding—was error.

Petitioner sought post-conviction relief, arguing, among other things, that trial counsel was constitutionally inadequate at sentencing for failing to object to the imposition of consecutive sentences on Apprendi and Blakely grounds. The post-conviction court denied relief. On appeal, petitioner contends that, because the Court had decided Apprendi and Blakely at the time of sentencing, "[a]ny defense attorney at that time should have been aware of the potential application of Apprendi and Blakely, and should have raised it whenever an enhanced sentence was imposed."

In order for petitioner to prevail on his argument, it is not sufficient for petitioner to show that the imposition of consecutive sentences would be erroneous under the law as it currently stands. Rather, to prove inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner must establish, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment based on the law at the time of sentencing and that counsel's failure had a tendency to affect the result of the criminal trial, that is, that petitioner suffered prejudice as a result. Burdge v. Palmateer, 338 Or. 490, 492, 112 P.3d 320 (2005). The Sixth Amendment requires a similar showing. Under the Sixth Amendment, petitioner must establish that counsel's performance was deficient and that the deficient performance caused actual prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under both the state and federal constitutions, a petitioner who has pleaded guilty to the underlying criminal charges must establish prejudice by showing "`that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.'" Saroian v. State of Oregon, 154 Or.App. 112, 117, 961 P.2d 252 (1998) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

We recently explained that standard in Buffa v. Belleque, 214 Or.App. 39, 42, 162 P.3d 376, rev. den., 343 Or. 690, 174 P.3d 1016 (2007):

"If a lawyer exercising reasonable professional skill and judgment would have recognized such an issue and would have concluded under the circumstances that the benefits of raising it outweighed the risks of doing so, failing to raise the issue may constitute inadequate assistance."

(Citing Burdge, 338 Or. at 498, 112 P.3d 320.) "Reasonable professional skill and judgment" can be described only generally; counsel must be prepared on the law to the extent appropriate for the nature and complexity of the case but "need not, however, expend time and energy uselessly or for negligible potential benefit." Burdge, 338 Or. at 493, 112 P.3d 320 (citing Krummacher v. Gierloff, 290 Or. 867, 874-75, 627 P.2d 458 (1981)).

Applying that standard to the facts of this case, we must determine whether trial counsel exercised "reasonable professional skill and judgment" in failing to object to the imposition of consecutive sentences. That inquiry turns on the state of the law at the time of sentencing. Accordingly, we start by briefly outlining the development of the relevant case law.

As discussed above, the United States Supreme Court decided Apprendi in June 2000 and Blakely in June 2004. To date, the Court has not addressed whether the principles announced in Apprendi and Blakely apply to limit judicial factfinding in the imposition of consecutive sentences.

Oregon appellate courts first addressed, albeit only tangentially, the application of Apprendi principles to consecutive sentences on November 10, 2004—approximately five months after Blakely was decided. State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005). In Fuerte-Coria, the defendant argued for the first time on appeal that the imposition of consecutive sentences based on judicial findings under ORS 137.123(5) was unconstitutional under the principles announced in Apprendi and Blakely. In rejecting the defendant's argument that the imposition of consecutive sentences constituted plain error under ORAP 5.45(1), we stated,

"Neither [Apprendi or Blakely], however, involved consecutive sentencing. Indeed, defendant identifies no reported decision in which any court has extended Apprendi's or Blakely's reasoning to invalidate a consecutive sentence. To the contrary, as the state points out, several courts have rejected the proposition that defendant now urges. In all events, given that Apprendi and Blakely addressed the imposition of single sentences that exceeded the statutorily prescribed maximum for particular crimes, and because making a sentence for one crime consecutive to a sentence for a different crime does not implicate the `statutory maximum' for either crime in any obvious way, any extension of Apprendi and Blakely to consecutive sentencing is, at best, `reasonably in dispute.'"

Fuerte-Coria, 196 Or.App. at 174, 100 P.3d 773 (footnote omitted).

We reached the merits of that issue approximately two years later—on December 20, 2006—in State v. Tanner, 210 Or.App. 70, 150 P.3d 31 (2006), vac'd and rem'd, 343 Or 554, 173 P.3d 831 (2007). In Tanner, the defendant argued that the imposition of consecutive sentences based on judicial factfinding was unconstitutional under the principles announced in Apprendi and Blakely. In noting that the issue was a matter of first impression in Oregon, a majority of this court rejected the defendant's argument, concluding that "although the [United States Supreme] Court might in the future extend the Sixth Amendment rule of law announced in Apprendi to factfinding relating to whether a defendant will serve sentences consecutively, we are not presently persuaded that the Sixth Amendment requires such factfinding to be made by a jury." Tanner, 210 Or.App. at 87-88, 150 P.3d 31.

The majority in Tanner recognized that other courts throughout the nation have wrestled with the issue of whether the principles of Apprendi and Blakely apply to the imposition of consecutive sentences and have reached different results. The majority discussed three of those...