Leyva-Grave-De-Peralta v. Blacketter

• Decision Date: 16 December 2009
• Docket Number: CV060733;,A137747.
• Parties: Rodolfo LEYVA-GRAVE-DE-PERALTA, Petitioner-Respondent, v. Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant.
• Court: Oregon Court of Appeals

223 P.3d 411

232 Or. App. 441

Rodolfo LEYVA-GRAVE-DE-PERALTA, Petitioner-Respondent, v. Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant.

CV060733;

A137747.

Court of Appeals of Oregon.

Argued and Submitted June 22, 2009.

Decided December 16, 2009.

Pamela J. Walsh, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Andrew S. Chilton argued the cause for respondent. With him on the brief was Chilton & Galli, LLC.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

BREWER, C.J.

This is a post-conviction case in which the court granted post-conviction relief and ordered that petitioner receive a new trial. The state appeals, arguing that the post-conviction court erred because it granted relief on a ground not pleaded in the petition for post-conviction relief or, alternatively, because petitioner did not prove that trial counsel provided inadequate assistance. Because we agree with the state's first argument, we reverse.

In the underlying criminal case, petitioner was charged with first-degree assault for intentionally stabbing his roommate in the back with a kitchen knife during an argument. The prosecutor requested that, in addition to the instruction for first-degree assault, the jury be instructed on the lesser-included offense of second-degree assault. Petitioner's trial counsel objected, arguing that a conviction for second-degree assault would be inconsistent with the state's theory of the case. The trial court overruled trial counsel's objection and gave the instruction.

During deliberations, the jury informed the court that it was deadlocked nine-to-three on the first-degree assault charge. The presiding juror told the trial judge that "the three are adamant in their position; and the nine are adamant in theirs and that I believe additional conversation will not help us without further instruction from you." With both counsel present, but without consulting them, the trial court told the jury, "We are going to let you proceed to the Assault In the Second Degree and start deliberating on Assault In the Second Degree." Neither the prosecutor nor petitioner's trial counsel objected to that course of action. The jury convicted petitioner of second-degree assault.

Petitioner appealed his conviction, raising two assignments of error. First, petitioner argued, the trial court had erred in entering a conviction for second-degree assault because the state had not charged him with that crime and it was not—at least in these circumstances—a lesser-included offense of first-degree assault. Second, he argued, the trial court had erred in refusing to instruct the jury on fourth-degree assault. This court affirmed petitioner's conviction without opinion and the Supreme Court denied review. State v. Leyva-Grave-De-Peralta, 199 Or.App. 270, 111 P.3d 248, rev. den., 339 Or. 230, 119 P.3d 790 (2005).

Petitioner then filed a petition for post-conviction relief. In his formal petition, in addition to other claims, petitioner alleged that his trial counsel had provided inadequate assistance in a number of respects. As relevant here, petitioner alleged that trial counsel provided inadequate assistance in that

"[t]rial [c]ounsel failed to object to the order of deliberation on the lesser included offenses as governed by Oregon Statutes. Under ORS 136.460(2), the jury must consider the charged offense first. The jury may consider lesser included offenses only if it acquits the defendant on the charged offense. Finally, if the jury fails to reach a decision on the original charge like it did here, * * * then [the] state and the defendant may stipulate that the jury may consider any lesser included offense[.] ORS 136.460(4). The record contains no such stipulation and as far as the record is concerned the jury is still deliberating on the charged offense. The trial court had no authority to enter the verdict."

(Underscore in original.) In preparing its defense in response to that allegation, the state obtained an affidavit from trial counsel in which he stated that his acquiescence in the improper procedure was a tactical choice. Trial counsel averred:

"We had a favorable jury. When the jurors were unable to reach a verdict on the Assault in the First Degree, the best option for petitioner was to let them deliberate on the [lesser-included offense]. If I had requested a mistrial, it would have opened the door to a less favorable jury convicting petitioner of Assault I at the second trial."

Petitioner moved for summary judgment in the post-conviction court. In support of his motion, petitioner quoted ORS 136.460, which governs the procedure for jury consideration of lesser-included offenses:

"(1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.

"(2) The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense. If there is more than one lesser included offense, the jury shall consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included offense only after finding the defendant not guilty of any more serious lesser included offenses.

"* * * * *

"(4) If the jury is unable to reach a decision on the original charge, the state and defendant may stipulate that the jury may consider any lesser included offense."

(Emphasis added.) Petitioner argued that the trial court had failed to follow the statutory procedure and that "[t]he failure of defense counsel to object to following the statute on these jury instructions amounts to ineffective assistance of counsel * * *." (Internal quotation marks and citation omitted.)

At the hearing on his summary judgment motion, petitioner asserted that trial counsel had performed deficiently because the record of the underlying criminal trial contained no stipulation, as required by ORS 136.460(4). Petitioner also argued, for the first time, that counsel's performance was inadequate because petitioner, personally, should have made the decision whether to allow the jury to consider second-degree assault as a lesser-included offense. Although focusing on the more general argument that trial counsel was deficient for failing to object to the improper procedure, counsel for petitioner also asserted, "Counsel here, we're claiming, was, per se, ineffective because he did not take the time to discuss with his client this option."

In response to the parties' arguments, the post-conviction court initially suggested that it agreed with the state's position that the issue was whether trial counsel had made a tactical decision to go along with the trial judge's instruction to the jury to consider second-degree assault. Ultimately, the post-conviction court concluded that a factual issue existed as to whether trial counsel had exercised reasonable judgment in acquiescing in the procedure, and it denied the motion for summary judgment. Subsequently, in his trial memorandum, petitioner again mentioned (together with his more detailed argument about the lack of a stipulation) that, regarding the decision whether to stipulate to allowing the jury to consider a lesser-included offense after deadlocking on the greater offense, trial counsel was "required to allow the client to make that decision."

At the post-conviction hearing, petitioner's counsel again argued that trial counsel "should have required the Court to follow the statute, and the fact that the Court didn't follow the statute means that the conviction is probably void." Regarding the choice whether to stipulate to allowing the deadlocked jury to consider the lesser-included offense, petitioner's counsel argued, "The client gets to make that call. [Trial counsel] didn't take the time to talk to the client about it and make sure that the client was making that decision." Petitioner's counsel asserted,

"Counsel was ineffective in failing to require that the Constitution and the statute mandates be done to their fullest and, as such, we're entitled to have this case sent back to the trial Court for a finding on the Assault I."

Petitioner's post-conviction counsel concluded, "So Counsel should have objected to it and should have at least made sure that [petitioner] was making the decision, not him. It wasn't trial Counsel's decision to make."

The post-conviction court granted relief, explaining,

"I'm granting the motion for post-conviction relief. I'm making some findings— I've really thought about this case—that the trial Court's procedure was simply wrong.

"My findings will be the trial jury was unable to reach a verdict on the crime charged. The Court then told the jury to consider the lesser-included. [The a]ttorney did not object and did not discuss with the Defendant. Neither party agreed, nor were they even asked.

"The outcome was conviction of lesser-included. The option would have been a hung jury with retrial and possible acquittal. The Court finds that it is inadequate representation to not at least discuss the options and risks with the client.

"I also find that none of Petitioner's other claims have merit.

"I have thought about whether this was just a strategic decision for which we could make deference to trial attorneys. I find this was so fundamental that without discussing it with [petitioner], I simply can't consider it appropriate behavior on [trial counsel's] part."

(Emphasis added.) Counsel for the state objected, stating, "But the State would except to that finding that Counsel was inadequate for not discussing the decision with the client. That is not one of...