Krieg v. Belleque

• Citation: 221 Or. App. 36,188 P.3d 413
• Decision Date: 02 July 2008
• Docket Number: A132499.,05C14253.
• Parties: Robert William KRIEG, Petitioner-Appellant, v. Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Court of Appeals of Oregon

188 P.3d 413

221 Or. App. 36

Robert William KRIEG, Petitioner-Appellant, v. Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

05C14253.

A132499.

Court of Appeals of Oregon.

Submitted December 14, 2007.

Decided July 2, 2008.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Denise G. Fjordbeck, Senior Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

In December 2003, petitioner was tried to the court and convicted of two counts of robbery in the second degree and one count of aggravated theft. On the robbery convictions, the trial court sentenced him to two consecutive 70-month prison terms. ORS 137.123; ORS 137.700. Petitioner filed an appeal; it was dismissed on petitioner's motion on November 15, 2004. Petitioner then sought post-conviction relief, asserting, in part, that he was denied adequate and effective assistance of criminal trial and appellate counsel in various respects. Among other things, petitioner contended that criminal trial counsel was constitutionally inadequate in that counsel failed to object to the imposition of consecutive sentences without the predicate facts being submitted to a jury and proved beyond a reasonable doubt. He also alleged that his appellate counsel was inadequate in failing to assign as plain error the trial court's imposition of those sentences. The post-conviction court denied relief, and petitioner appeals. We reject all of petitioner's arguments, writing only to address the adequacy of trial and appellate counsels' performance in regard to the imposition of consecutive sentences.

The post-conviction court found as fact that petitioner had provided no evidence demonstrating that his consecutive sentences were improper under ORS 137.123(5);¹ that he had provided no evidence that trial counsel unreasonably failed to make any particular argument relating to the imposition of consecutive sentences; and that he had provided no evidence that appellate counsel did not properly advise him regarding his appeal. The court concluded that petitioner was not denied his state or federal constitutional right to assistance of trial or appellate counsel. On appeal, expressly relying on 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), petitioner renews his argument that both trial and appellate counsel were inadequate in regard to the imposition of consecutive sentences.

To prevail on a post-conviction claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must prove, by a preponderance of the evidence, facts demonstrating that counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result. Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). To prevail under the Sixth Amendment to the United States Constitution, a petitioner must prove that counsel's performance "fell below an objective standard of reasonableness * * * under prevailing professional norms" and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See ORS 138.530(1)(a) (post-conviction relief is available for a substantial denial of rights under the state or federal constitution).

In order to prove prejudice of a constitutional magnitude, a petitioner must show that counsel's advice, acts, or omissions had a tendency to affect the result of the prosecution. Stevens v. State of Oregon, 322 Or. 101, 110, 902 P.2d 1137 (1995). Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact. Ashley v. Hoyt, 139 Or.App. 385, 395 n. 8, 912 P.2d 393 (1996). If the post-conviction court made such predicate findings, we are bound by them if they are supported by evidence in the record; if the post-conviction court did not expressly make such findings, we nevertheless assume that it did so in a manner consistent with its ultimate conclusion of law. Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002).

In this case, whether petitioner's trial counsel or his appellate counsel exercised reasonable professional skill and judgment in regard to the imposition of consecutive sentences entails an examination of the state of the law at the relevant times. See Peralta-Basilio v. Hill, 203 Or.App. 449, 452, 126 P.3d 1 (2005), rev. den., 340 Or. 359, 132 P.3d 1056 (2006) (citing Wells v. Peterson, 315 Or. 233, 236, 844 P.2d 192 (1992)). If a lawyer exercising reasonable professional skill would have recognized the existence of an issue and would have concluded under the circumstances that the benefits of raising it out-weighed the risks of doing so, failing to raise the issue may constitute inadequate assistance. Buffa v. Belleque, 214 Or.App. 39, 42, 162 P.3d 376, rev. den., 343 Or. 690, 174 P.3d 1016 (2007).

At the time that petitioner was sentenced, it had been several years since the United States Supreme Court had decided Apprendi, which held that, consistently with the Sixth Amendment, any fact — except the fact of a prior conviction — that increases a sentence beyond the prescribed statutory maximum sentence for a particular offense, unless admitted by the defendant, must be proved to a jury beyond a reasonable doubt. Apprendi said nothing however, about whether those requirements apply to the imposition of consecutive sentences, and, at that time, no state appellate court — in Oregon or elsewhere — had extended the principle to those sentences. See State v. Tanner, 210 Or.App. 70, 80-85, 150 P.3d 31 (2006), vac'd and rem'd, 343 Or. 554, 173 P.3d 831 (2007) (reviewing development of law and determining that, as of the time of the court's decision in that case, an Ohio Supreme Court case decided earlier that same year was the only state appellate court case to have extended Apprendi principles to consecutive sentences).

In June 2004 — some months after petitioner was sentenced and during the pendency of his appeal — the United States Supreme Court held in Blakely that, for the purpose of a sentencing scheme much like Oregon's sentencing guidelines scheme, the prescribed statutory maximum sentence for a crime is the presumptive sentence for that crime and that, accordingly, factors supporting a departure sentence, unless admitted by the defendant, must be proved to a jury beyond a reasonable doubt. Again, however, the Court did not expressly address the application of that principle to consecutive sentences and, as discussed in Tanner, no state court had yet determined that they properly applied. Then, on November 10, 2004, this court determined in State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004), rev. den., 338 Or. 16, 107 P.3d 26 (2005), that the imposition of consecutive sentences based on facts not proved to a jury or admitted by the defendant...