Gill v. Lampert
| Decision Date | 05 April 2006 |
| Docket Number | 0201-1650-M.,A121390. |
| Citation | 205 Or. App. 90,132 P.3d 674 |
| Parties | Danyale Dewitt GILL, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent. |
| Court | Oregon Court of Appeals |
Harrison Latto argued the cause and filed the briefs for appellant.
Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.
Petitioner appeals from a judgment denying his petition for post-conviction relief. He argues that he is entitled to post-conviction relief because he received inadequate assistance of counsel at his underlying criminal trial. Specifically, he contends that his trial counsel was deficient because he failed to object to the imposition of dangerous offender sentences based on facts pertaining to the offenses at issue — as opposed to facts pertaining to petitioner — that were not found by a jury. Defendant, the superintendent of the correctional facility in which petitioner is incarcerated, argues, among other things, that the jury's guilty verdict necessarily included a finding of the facts on which petitioner's dangerous offender sentences were based. On review for errors of law, Ashley v. Hoyt, 139 Or.App. 385, 391, 912 P.2d 393 (1996), we reverse and remand.
The following facts are not in dispute. Petitioner was charged in 1998 with a number of crimes, including two counts of attempted aggravated murder, ORS 163.095, and two counts of attempted assault in the first degree with a firearm, ORS 163.185, in connection with an incident in which petitioner tried to elude two police officers who had told him he was under arrest for drug offenses. When the officers informed petitioner that he was under arrest, he fled, first in his car and then on foot. Petitioner was armed with a handgun. After both petitioner and the officers had left their respective vehicles, petitioner's handgun discharged several times.1 The officers eventually subdued petitioner and took him into custody.
On November 13, 1998, a jury acquitted petitioner of the attempted aggravated murder charges but convicted him of both counts of attempted assault as well as several other charges. After the court excused the jury, the prosecutor requested that the court consider imposing a dangerous offender sentence in light of petitioner's criminal history, which included four prior felony convictions. The court scheduled a presentence investigation and ordered a psychological evaluation of petitioner.
Petitioner was sentenced on January 13, 1999. At the sentencing hearing, the court received evidence and heard the arguments of the parties. It found that petitioner met the criteria set forth in the dangerous offender sentencing statute, ORS 161.725. In particular, it found that petitioner had "seriously endangered the life or safety of another," had previously been convicted of an unrelated felony, and suffered from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another. It sentenced him to a 30-year indeterminate prison term on one attempted assault conviction and a consecutive 10-year indeterminate prison term on the other. Petitioner's counsel challenged the dangerous offender sentence on several grounds, but he did not object on the ground that the court — as opposed to the jury — had made the finding that petitioner had seriously endangered the life or safety of another.
Petitioner appealed, asserting that, under this court's decision in State v. Mitchell, 84 Or.App. 452, 734 P.2d 379, rev. den., 303 Or. 590, 739 P.2d 570 (1987), he was entitled to a jury finding as to whether his offenses had seriously endangered the life or safety of the victims. The state responded that petitioner's argument was unpreserved and was not a claim of plain error. We affirmed the trial court's judgment without opinion, and the Supreme Court denied review. State v. Gill, 172 Or.App. 296, 19 P.3d 389, rev. den., 332 Or. 240, 28 P.3d 1175 (2001).
Petitioner then filed the petition for post-conviction relief that is the subject of this appeal. In it, he contended that his trial counsel had provided inadequate assistance by failing to object to the dangerous offender sentence on the ground that the jury did not make the finding of serious endangerment. The post-conviction court rejected the petition.
On appeal, petitioner renews the argument that his trial counsel's performance was inadequate. He contends that, at the time of his sentencing, the law was settled that, whereas facts that characterize a defendant are to be found by the court, facts related to the crime are for the jury to find. Petitioner argues that his trial counsel should have been aware of the state of the law and that counsel's failing prejudiced petitioner.2
Defendant does not dispute petitioner's contention that it is settled law that serious endangerment is a fact related to the crime; nor does defendant dispute that petitioner was entitled to have a jury determine that fact. Instead, defendant argues that the jury's verdict constituted a finding that petitioner's actions seriously endangered the life or safety of another. Because no separate jury finding was required, defendant asserts, petitioner's trial counsel was not inadequate because he had no basis on which to argue that petitioner was denied a jury trial on the serious endangerment issue. Defendant also argues that, even if counsel was inadequate, petitioner failed to prove that he was prejudiced by counsel's failure to object, because the record of petitioner's trial provides no grounds for concluding that there is any substantial possibility that, had the issue been submitted to a jury, the result would have been any different.3
At the outset, we agree with the parties that, at the time of petitioner's sentencing it was settled law that, when a defendant is sentenced as a dangerous offender, the defendant is entitled to have a jury decide whether the criminal act seriously endangered another. We so held in Mitchell more than 10 years before petitioner was sentenced. We have also held that it constitutes inadequate assistance of counsel if counsel fails to object when a court, rather than a jury, makes the serious endangerment finding. See Lovelace v. Zenon, 159 Or.App. 158, 976 P.2d 575 (1999), rev. den., 329 Or. 589, 994 P.2d 130 (2000). It follows that, unless the jury did, in fact, make the necessary finding in petitioner's case, or unless petitioner was not prejudiced by counsel's failure to object to the court-made finding, he is entitled to post-conviction relief. Accordingly, we turn to defendant's arguments.
As noted, defendant first argues that the jury necessarily found that petitioner had seriously endangered the lives or safety of the two arresting officers. Defendant asserts,
Defendant mischaracterizes the nature of petitioner's conviction and the findings that were necessary thereto. The only findings that were necessarily included in the jury's verdict are those that were essential to convict petitioner. Petitioner was convicted of attempted first-degree assault with a firearm. ORS 163.185(1) provides that a person commits first-degree assault if the person "intentionally causes serious physical injury to another by means of a deadly or dangerous weapon." ORS 161.405(1) defines "attempt" as follows: "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." Thus, the jury necessarily found that petitioner took a substantial step toward causing serious physical injury to another by means of a firearm.
For conduct to constitute a substantial step toward commission of a crime, the conduct must advance the criminal purpose charged and provide some verification of the...
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