Dorn-Privett v. Brown

• Docket Number: A176150
• Decision Date: 28 December 2023
• Parties: ERIN ELIZABETH DORN-PRIVETT, Petitioner-Appellant, v. Nichole BROWN, Superintendent, Coffee Creek Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

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329 Or.App. 783

ERIN ELIZABETH DORN-PRIVETT, Petitioner-Appellant,
v.
Nichole BROWN, Superintendent, Coffee Creek Correctional Institution, Defendant-Respondent.

A176150

Court of Appeals of Oregon

December 28, 2023

Submitted March 28, 2023

Washington County Circuit Court 19CV41932; A176150 Patricia A. Sullivan, Senior Judge.

Margaret Huntington and O'Connor Weber LLC filed the brief for appellant.

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

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

Affirmed.

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[329 Or.App. 784] HELLMAN, J.

Petitioner appeals from a judgment that denied her petition for post-conviction relief. In her sole assignment of error, petitioner contends that the post-conviction court erred when it concluded that her trial counsel did not provide inadequate and ineffective assistance of counsel after counsel failed to argue for merger of petitioner's convictions under ORS 161.067(1). For the reasons below, we affirm.

Petitioner's convictions were based on an incident in which she drove her car at her neighbors during a dispute. For that conduct, a jury found petitioner guilty of three counts of attempted first-degree assault, ORS 163.185, three counts of unlawful use of a weapon, ORS 166.220, three counts of menacing, ORS 163.190, three counts of recklessly endangering another person, ORS 163.195, and second-degree disorderly conduct, ORS 166.025. At sentencing, the trial court merged the guilty verdicts for unlawful use of a weapon with the verdicts for first-degree attempted assault. Petitioner's counsel further argued that the menacing and reckless endangering verdicts should also merge with the first-degree attempted assault verdict; however, that argument was not explicitly based on ORS 161.067(1). The trial court rejected petitioner's argument regarding merger of those verdicts.

In her post-conviction case, petitioner argued that trial counsel failed to exercise reasonable professional skill and judgment because counsel did not raise ORS 161.067(1) as the legal basis for the trial court to merge the verdicts for menacing, ORS 163.190, and recklessly endangering another person, ORS 163.195, with the verdict for attempted first-degree assault, ORS 161.405 and ORS 163.185. The post-conviction court denied relief because it determined that petitioner did not prove "that an argument for merger under ORS 161.067(1) would have been successful had Trial Counsel argued it at sentencing."

We review the post-conviction court's denial of relief for legal error and are bound by the court's "findings of historical fact * * * if there is evidence in the record to support them." Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015).

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[329 Or.App. 785] A petitioner is entitled to post-conviction relief under ORS 138.530 when "there has been a 'substantial denial' of a petitioner's 'rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.'" Green, 357 Or at 311 (quoting ORS 138.530(1)(a)). Although we interpret and apply Article I, section 11, of the Oregon Constitution independently of the Sixth Amendment to the United States Constitution, "the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effectiveness of counsel under the federal constitution." Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons, 355 Or. 598, 330 P.3d 595 (2014).

To be entitled to post-conviction relief based on a claim of inadequate assistance of counsel, a petitioner must prove that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice from counsel's inadequacy. Id. (Article I, section 11); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Sixth Amendment).

Although there is no case law holding that the crimes of menacing and recklessly endangering another person merge with attempted first-degree assault under ORS 161.067, the law does not require a petitioner to cite a directly controlling case to establish the inadequacy of counsel. Indeed, in Burdge v. Palmateer, 338 Or. 490...