Lopez-Minjarez v. Kelly

• Docket Number: A176856
• Decision Date: 04 December 2024
• Citation: Lopez-Minjarez v. Kelly, 336 Or.App. 544, A176856 (Or. App. Dec 04, 2024)
• Parties: PETRONILO LOPEZ-MINJAREZ, Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

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336 Or.App. 544

PETRONILO LOPEZ-MINJAREZ, Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A176856

Court of Appeals of Oregon

December 4, 2024

Argued and submitted September 7, 2023.

Marion County Circuit Court 18CV57288; Claudia M. Burton, Senior Judge.

Jedediah Peterson and O'Connor Weber, LLC, fled the brief for appellant.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman Judge.

HELLMAN, J Petitioner appeals a judgment that denied his petition for post-conviction relief. In the underlying criminal case petitioner was convicted of felony murder. On appeal, he raises four assignments of error, arguing that the post-conviction court erred when it denied his claims alleging inadequate and ineffective assistance of counsel. Specifically, petitioner argues that his first trial counsel provided deficient representation by referencing petitioner's previously excluded statements, that retrial counsel provided deficient representation by requesting a legally incorrect jury instruction, and that appellate counsel provided deficient representation by failing to assign error to the trial court's refusal to instruct the jury on withdrawal or to give prior versions of petitioner's requested instruction. We conclude that the post-conviction court did not err because petitioner did not establish that first trial counsel or retrial counsel's performance prejudiced him or that appellate counsel failed to exercise reasonable professional skill and judgment. Further, we conclude that the record supports the post-conviction court's finding that appellate counsel did, in fact, raise the trial court's refusal to give a withdrawal instruction on appeal. Accordingly, we affirm.

We review the post-conviction court's decision for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). "A post-conviction court's findings of historical fact are binding on this court if there is evidence in the record to support them." Id. Because the parties are familiar with the facts and procedural background, we briefly state only the facts necessary to provide context for our decision and supplement those facts in the discussion of each assignment of error.

The underlying criminal proceeding "arose after [petitioner] and his father drove in [petitioner's] truck to the home of a man who was having an extra-marital affair with [petitioner's] mother." State v. Lopez-Minjarez, 289 Or.App. 403, 404, 410 P.3d 1109 (2017), rev den, 363 Or. 390 (2018) {Lopez-Minjarez II) (internal quotation marks omitted). "The victim-the man's teen-aged son-arrived shortly thereafter." Id. (internal quotation marks omitted). Petitioner "or his father, or the two of them together, pushed the victim into the house, where the victim was shot, but not killed. The victim was then forced into [petitioner's] truck and taken to a remote area off a logging spur road, where he was killed." Id. (internal quotation marks omitted). Petitioner's father was never apprehended. Id.

A jury convicted petitioner of several crimes, including felony murder. Id. The Supreme Court ultimately reversed, concluding that the trial court incorrectly instructed the jury on accomplice liability. State v. Lopez-Minjarez, 350 Or. 576, 589-91, 260 P.3d 439 (2011) (Lopez-Minjarez I). On retrial, a jury again convicted defendant of felony murder and other crimes, and we affirmed. Lopez-Minjarez II, 289 Or.App. at 404-07. The Supreme Court denied review. State v. Lopez-Minjarez, 363 Or. 390, 434 P.3d 33 (2018).

In 2020, petitioner filed a petition for post-conviction relief. As relevant to this appeal, petitioner alleged that his first trial counsel were inadequate and ineffective and prejudiced his retrial. He also alleged three claims that trial counsel and appellate counsel from his retrial were inadequate and ineffective. The post-conviction court denied relief on all claims. This appeal followed. In our following analysis, we address petitioner's assignments of error in chronological order, starting with the claim against his first trial counsel, before turning to his claims regarding retrial counsel and appellate counsel.

First trial counsel: Petitioner's excluded statements.

In petitioner's fourth assignment of error, he argues that the post-conviction court erred when it denied his claim that his first trial counsel provided inadequate and ineffective assistance of counsel by "open[ing] the door" to petitioner's previously excluded statements. Petitioner argues that he was prejudiced because the trial court in his retrial adopted the ruling from petitioner's first trial and admitted the statements.

A petitioner claiming inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution has the burden "to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991) ("Only those acts or omissions by counsel which have a tendency to affect the result of the prosecution can be regarded as of constitutional magnitude." (internal quotation marks and brackets omitted)). Under the federal standard, a petitioner is required to "show that counsel's representation fell below an objective standard of reasonableness" and that, as a result, petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). As the Oregon Supreme Court has recognized, those standards are "functionally equivalent." Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons, 355 Or. 598, 330 P.3d 595 (2014).

Even if counsel's representation amounted to deficient performance, petitioner has not established that the previously excluded statements prejudiced him on retrial. As the post-conviction court found, the statements provided some benefit to petitioner. Namely, the statements were consistent with his theory that his father was solely responsible for the murder. Petitioner testified that he was drunk on the night the victim was killed, that he hid in a McDonald's bathroom for approximately 40 minutes after his father drove away with the victim, and that his father later returned without the victim. In addition, a psychology professor testified that a combination of alcohol and "a high level of stress" would interfere with a person's memory. Moreover, even if the statements negatively impacted petitioner's credibility, they were not the only evidence that had that effect. As the post-conviction court found, the other evidence against petitioner, including physical evidence, was "much more problematic" than the previously excluded statements themselves. Because we conclude that the record supports the post-conviction court's findings, we conclude that petitioner cannot prove either a tendency or reasonable probability of a different outcome, absent trial counsel "open[ing] the door" to those statements. The post-conviction court did not err when it denied relief.

Retrial counsel: Legally incorrect jury instruction.

In his first assignment of error, petitioner argues that the post-conviction court erred when it denied relief on his claim that retrial counsel's representation was inadequate and ineffective. Specifically, that claim alleged that retrial counsel proposed a legally incorrect jury instruction^[1]and that petitioner was prejudiced because "a juror confirmed to [retrial counsel] that, had the jury been given a proper version of the *** accomplice liability instruction, he would have voted not guilty on felony murder."

On retrial, petitioner argued that he had withdrawn from the felonies before his father murdered the victim and proposed several instructions that addressed withdrawal. The trial court asked petitioner to revise his proposed instruction, and petitioner ultimately proposed the following final instruction:

"Felony Murder requires a 'causal connection' between the felony the defendant was committing and the homicide. If the felony was completed, terminated, or withdrawn from prior to the coparticipant's commission of the felony, this may be sufficient to break the causal connection between the felony and the homicide in a manner which relieves the defendant of legal responsibility for felony murder."

Lopez-Minjarez II, 289 Or.App. at 404-05 (emphasis in Lopez-Minjarez II). The state argued that "[t]here is no law in Oregon called termination and completion or withdrawal" and that petitioner misinterpreted the Supreme Court's opinion in Lopez-Minjarez I. The trial court then declined to give that instruction. Id. at 405. Instead, the trial court instructed the jury that

"a person commits the crime of felony murder * * * if that person acting alone or with one or more persons commits the crime of [first-degree burglary or first-degree kidnapping] and in the course of and in furtherance of the crime the person is committing, the person, or another participant *** causes the death of a person other than one of the participants in the crime."

Even if counsel's proposal of the legally incorrect instruction was deficient performance, it did not prejudice petitioner at retrial or on appeal. At retrial, the court did not rely on the error in the instruction when it rejected petitioner's proposed...