Everett v. Premo

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: LAGESEN, J.
• Citation: Everett v. Premo, 279 Or App 470, 380 P.3d 1099 (Or. App. 2016)
• Decision Date: 20 July 2016
• Docket Number: A153907
• Parties: Ronald A. Everett, Petitioner–Appellant, v. Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

279 Or.App. 470

380 P.3d 1099

Ronald A. Everett, Petitioner–Appellant,

v.Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

A153907

Court of Appeals of Oregon.

Submitted August 13, 2015.

July 20, 2016

Jason Weber filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

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

LAGESEN, J.

A jury convicted petitioner of attempted assault in the second degree after the trial court instructed the jury incorrectly on the elements of that offense and petitioner's trial counsel failed to prevent or remedy that error. Petitioner then initiated this post-conviction proceeding, seeking relief from that conviction on the ground that his trial counsel's failure to ensure that the jury was correctly instructed deprived him of the right to adequate and effective assistance of counsel guaranteed by Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. The post-conviction court denied relief, concluding that, although petitioner's trial counsel should have objected to the trial court's failure to instruct the jury correctly on the elements of attempt, that deficiency did not prejudice petitioner. We conclude otherwise and, for that reason, reverse and remand with instructions for the post-conviction court to grant petitioner relief from his conviction for attempted second-degree assault.¹

BACKGROUND

The conviction that petitioner challenges arose out of his encounter with a police officer, Deputy Moss. Moss, suspecting that petitioner was driving a stolen car, followed petitioner into the parking lot of an apartment complex. Petitioner pulled into a covered parking space and Moss's patrol car skidded to a stop right behind him. A car was parked in the space to the right of petitioner's car, but there were two empty spaces next to petitioner on the left. Moss got out of her car, drew her gun, and approached the driver's side of petitioner's car. Petitioner then maneuvered his car back and forth in an effort to get out of the parking space, ramming the patrol car behind him and a support pole in front of him multiple times. Moss repeatedly ordered him to stop, but petitioner kept maneuvering until he succeeded in rotating his car to the left so that it was pointed toward the two empty parking spaces and Moss. Petitioner then accelerated in that direction. Moss jumped out of the way and fired three shots at petitioner, striking him once. Petitioner nevertheless was able to flee the parking lot and evade Moss's attempts to find him. However, his escape was short-lived; the next day, police apprehended him at his parents' house. Petitioner was charged with five offenses: attempted aggravated murder, ORS 161.405 and ORS 163.095 (Count 1); attempted assault in the first degree, ORS 161.405 and ORS 163.185 (Count 2); attempt to elude a police officer, ORS 811.540, (Count 3); unauthorized use of a vehicle, ORS 164.135 (Count 4); and failure to perform the duties of a driver, ORS 811.700 (Count 5).

At trial, petitioner did not seriously contest the latter three charges against him; his trial counsel affirmatively told jurors that they would convict petitioner of those offenses. Instead, the parties focused on the charges of attempted aggravated murder and attempted assault in the first degree. The heart of their dispute was petitioner's mental state at the time he drove his car in Moss's direction. The state's theory was that defendant intended to kill or cause serious physical injury to Moss by driving toward her; defendant's theory was that he simply was trying to escape, had no intention of injuring Moss and, at most, acted recklessly with respect to any risk of harm posed to her by his driving. Apparently believing that the mental states for attempted assault in the third degree and attempted assault in the fourth degree were recklessness and criminal negligence, respectively, petitioner's trial counsel requested that the jury be instructed on those offenses as ostensible lesser-included offenses of attempted assault in the first degree. The state did not object to the requested instructions, but argued that, if the court gave them, it should also instruct the jury on attempted assault in the second degree.

The trial court agreed to deliver the requested instructions regarding the lesser-included offenses, along with its instructions on attempted aggravated murder and attempted assault in the first degree. Although the instructions on attempted aggravated murder and attempted assault in the first degree correctly informed the jury that it had to find that petitioner acted intentionally, none of the instructions regarding the lesser-included offenses correctly stated the law. As to attempted assault in the second degree, the jury was instructed:

“Oregon law provides that a person commits the crime of Attempted Assault in the Second Degree if the person knowingly causes physical injury to another by means of a dangerous weapon.

“In this case, to establish Attempted Assault in the Second Degree, the State must prove beyond a reasonable doubt the following three elements: One, the act occurred in Clackamas County, Oregon; two, the act occurred on or about November 30th, 2006; and three, that [defendant] knowingly caused physical injury to * * * Moss by means of a dangerous weapon.

“A person acts knowingly or with knowledge if the person acts with an awareness that his or her conduct was of a particular nature. When used in the phrase ‘knowingly attempted to cause physical injury to another by means of a dangerous weapon,’ ‘knowingly’ or ‘with knowledge’ means that the defendant acted with an awareness that a physical injury would occur. Knowledge is also established if the person acts intentionally.”

The instruction was incorrect because it stated that, in order to convict petitioner of attempted assault in the second degree, the jury had to find that petitioner committed the completed offense of second-degree assault, that is, that petitioner “knowingly caused physical injury to * * * Moss by means of a dangerous weapon.” Although the instruction explained the mental state for the offense in terms of attempted, rather than completed, second-degree assault, the instruction informed the jury that the applicable mental state for that attempt offense was “knowingly”: “When used in the phrase ‘knowingly attempted to cause physical injury to another by means of a dangerous weapon,’ ‘knowingly’ or ‘with knowledge’ means that the defendant acted with an awareness that a physical injury would occur.” However, ORS 161.405(1) specifies that the mental state for attempt is “intentionally”: “A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405(1).

The instructions regarding attempted third-degree assault and attempted fourth-degree assault were defective for similar reasons. They suggested, incorrectly, that the mental states for those attempt offenses were, respectively, recklessness and criminal negligence.² As a result, those instructions suggested to the jury that a person could be convicted for attempting to act recklessly or negligently. But, in State v. Smith , 21 Or.App. 270, 278–79, 534 P.2d 1180 (1975), we held that, as a matter of law, a person “cannot attempt to act recklessly,” because attempt requires intentional conduct. Id. at 279, 534 P.2d 1180 (quoting Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 96, 97 (July 1970)).³ The same necessarily holds true with respect to negligent conduct.

Although both the prosecutor and trial counsel had requested, and the court had agreed to deliver, Uniform Criminal Jury Instruction (UCrJI) 1040, which defines the elements of attempt for purposes of ORS 161.405⁴ —and would have informed the jury both that the mental state for attempt is “intentionally,” and that attempt requires a person to engage in “conduct that constitutes a substantial step” toward the commission of a crime—the trial court did not verbally deliver that instruction. Neither the prosecutor nor trial counsel alerted the court of its omission, or of the other defects in its instructions regarding attempted assault in the second, third, and fourth degrees.

So instructed, the jury acquitted petitioner on the charge of attempted aggravated murder. It likewise acquitted petitioner of attempted assault in the first degree, but convicted him of the lesser-included offense of attempted assault in the second degree. The jury also convicted petitioner of the three offenses—attempting to elude a police officer, unauthorized use of a vehicle, and failure to perform the duties of a driver—that trial counsel had conceded to the jury. Petitioner then appealed. Among other things, he argued that the trial court had plainly erred in failing to deliver UCrJI 1040, acknowledging that the claimed error was not preserved. We affirmed, and the Supreme Court denied review. State v. Everett , 237 Or.App. 556, 240 P.3d 102 (2010), rev. den. , 349 Or. 601, 248 P.3d 419 (2011).

Petitioner then initiated this proceeding. In his petition, he alleged several distinct grounds for post-conviction relief, including the one that is the focus of this appeal: whether his trial counsel was inadequate and ineffective for “fail[ing] to ensure that the trial court instructed petitioner's jury on all material elements applicable to the lesser included offense of attempted assault in the second degree.” Petitioner contended that competent trial counsel would have taken steps to ensure that the jury was accurately instructed on the elements of that offense, including ensuring that UCrJI 1040 was, in fact, delivered to the jury. He...