Kappel v. Palmateer, No. CIV. 99-1559-JO.
| Decision Date | 08 March 2001 |
| Docket Number | No. CIV. 99-1559-JO. |
| Citation | 156 F.Supp.2d 1180 |
| Parties | Bradley G. KAPPEL, Petitioner, v. Joan PALMATEER, Superintendent Oregon State Penitentiary, Respondent. |
| Court | U.S. District Court — District of Oregon |
Christine Stebbins Dahl, Assistant Federal Public Defender, Portland, OR, for Petitioner.
Hardy Myers, Attorney General, Carolyn Alexander, Assistant Attorney General, Department of Justice, Salem, OR, for Respondent.
Petitioner, an inmate at the Oregon State Penitentiary, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court is the petition for writ of habeas corpus. For the reasons set forth below, the petition (# 2) is DENIED and this action is DISMISSED.
Petitioner was indicted on September 21, 1994, on charges of one count of Rape in the First Degree, three counts of Sodomy in the First Degree, and two counts of Sexual Abuse in the First Degree. The victim was petitioner's three year-old daughter. The indictment alleged that petitioner subjected his daughter to sexual contact by causing her to touch his scrotum and penis, causing her to place her mouth and tongue on his anus, placing his penis inside her mouth, and penetrating her both anally and vaginally. Each count of the indictment stated that the acts occurred "on or between the 1st day of March, 1994 and the 29th day of April, 1994."
Pursuant to plea negotiations, petitioner chose to plead guilty to two counts of Sodomy in the First Degree. The Plea Petition reflected that the maximum possible sentence for the charges was 40 years' imprisonment, and also reflected that the prosecutor would recommend a sentence of 60 months on each count, to be served consecutively. In a letter written prior to execution of the Plea Petition, petitioner's attorney had explained to petitioner the terms of the prosecutor's plea offer:
[The District Attorney] offered to dismiss counts III (Sodomy), IV (Sodomy), V (Sex Abuse) and VI (Sex Abuse), if you plead guilty to Count I (Rape) and Count II (Sodomy). He would recommend a sentence of 5 years in prison on each count to be served consecutively for a total of 10 years. After discussing the offer with you, I told you I would try to work something out that would be better for you.
On Friday, January 27, 1995, I counter-offered and suggested that you plead guilty to 1 charge of Sodomy and both of the 2 Sex Abuse counts. This would reduce your maximum jail time to 8 years.
[The District Attorney] would not agree to go any lower than a plea to 2 class "A" felonies, but that you could choose which 2. These would be any of the first 4 counts which are Rape or any of the 3 sodomies.
After I shared that information with you, you decided that rather than have a trial, you would choose to plead guilty to counts II and IV, both Sodomies. This choice was done knowing that the Deputy District Attorney will recommend 5 years on each or a total of 10 years. At sentencing, I will argue that your sentences be concurrent (served at the same time) for a total of 5 years. It will be up to the judge to make the final determination as to the length of sentence.
At a plea hearing on February 1, 1995, the court engaged in the following colloquy with petitioner:
THE COURT: Mr. Kappel, I have before me a petition to enter a plea of guilty to sodomy in the first degree, two counts, II and IV.
Did you read this petition and discuss this with your attorney before signing this?
Prior to petitioner's sentencing, an investigator prepared a presentence investigation ("PSI") report for the court. Much of the information in the PSI report was derived from a letter prepared by a Pediatric Social Worker who had examined the victim at some length. The letter reflected that the victim had reported the sexual events with petitioner in explicit detail. When interviewed by the investigator, petitioner denied the majority of the child's recitation of events, stating that it was a single, isolated occurrence over which he had no control. The investigator concluded that petitioner's use of his daughter's love and trust to manipulate her into satisfying his own gratification was the worst kind of abuse of all, and a "grievous psychological issue." She recommended a presumptive 60-month sentence on each count, but also listed several aggravating factors that could be used to justify an upward departure. The report did not contain the investigator's recommendation whether the sentences should be served concurrently or consecutively.
Petitioner's sentencing hearing was convened on March 10, 1995. At that time, the trial court noted that the PSI report did not contain a recommendation as to consecutive or concurrent sentences. The prosecution acknowledged this, but nevertheless recommended the sentence set forth in the Plea Petition. Petitioner's attorney, on the other hand, argued for concurrent, rather than consecutive sentences:
MR. KOVAC: ... Equally remarkable in this case is the information found on—at the bottom of Page 5 in which the little girl's mother is quoted to say,
And my client is not coming off his guilty plea. He, through the course of my representation of him, has had a very, very difficult time acknowledging this to himself and to his family and to those that know him. That is not an unusual circumstance, but in my numerous conversations with him, both in and out when he was in custody and also out of custody, has shown a consistent pattern towards the acknowledgment of this, of responsibility for this horrible thing, and that is what was picked up in the presentence report. And the report writer does make an attempt at trying to understand how this happened, and in a fairly—I don't want to—I don't want to give a negative connotation to the word "immature," but it's not a professional diagnosis although that—it appears that there may be some acknowledgment of my client's need for certainly need for treatment in this case. And he was a young person depressed and lonely, and also had been ingesting alcohol for a period of time.
...
It's my thought that the treatment will be effective in his case, and it's our recommendation to the Court that he be sentenced to concurrent time, five years on Counts I and II [sic]. And once again, so as not to misspeak myself, we are recommending that he receive some time and do a total of 60 months. And he does not have any criminal record, as you can see from his guideline work sheet. He has no felonies either adult or juvenile and no misdemeanors whatever. This is his first brush with the law and certainly one that will impact a significant portion of his adult life—not just with incarceration in prison, but the actual aftermath of that.
Expressing his concern about the lack of a recommendation in the PSI report, the trial judge recessed the sentencing hearing, which was re-convened the following Monday with the PSI investigator present. At that time, she recommended that the sentences be consecutive. The court agreed, stating:
THE COURT: ... [T]he fact that the counts that you've plead guilty to, Count II and Count IV, are legally sufficient to impose consecutive sentences, I have to indicate that they are separate counts. Count IV is an incidental count during the commission of Count II. But they constitute a separate harm and danger to the victim.
...
I think that the presentence report has set forth existing aggravating factors that they were separate incidents and that the harm was incidental and that consecutive sentences are appropriate.
Petitioner filed a notice of direct appeal. Upon the advice of his appointed appellate counsel, however, petitioner voluntarily dismissed the appeal.
Petitioner then sought state post-conviction relief, alleging claims of ineffective assistance of trial counsel, improper sentencing by the trial court, and defective plea. After an evidentiary hearing, the post-conviction court denied relief. On appeal, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Kappel v. Johnson, 159 Or.App. 309, 978 P.2d 458, rev. denied, 329 Or. 287, 994 P.2d 122 (1999).
On November 4, 1999, petitioner filed the instant petition for writ of habeas corpus. In it, he asserts that he was denied effective assistance of trial counsel in the following three respects:
To continue reading
Request your trial