Lopez v. Laney

• Decision Date: 23 November 2022
• Docket Number: A174827
• Citation: 322 Or.App. 778
• Parties: TYLER LOPEZ, Petitioner-Appellant, v. Garrett LANEY, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

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322 Or.App. 778

TYLER LOPEZ, Petitioner-Appellant, v. Garrett LANEY, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.

A174827

Court of Appeals of Oregon

November 23, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted October 26, 2022

Umatilla County Circuit Court 19CV35204; A174827 J. Burdette Pratt, Senior Judge.

Raymond Tindell fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

Petitioner appeals a judgment denying his petition for post-conviction relief. On appeal, he raises four assignments of error contending that the post-conviction court erred in denying relief, because (1) his trial counsel failed to ensure his guilty plea was knowing, voluntary, and intelligent; (2) his trial counsel failed to present mitigating evidence; (3) his trial counsel failed to move to suppress certain statements that petitioner made to police; and (4) his sentence of 513 months' prison is unconstitutionally disproportionate. We affirm.

"We review the post-conviction court's denial of relief for legal error," and "we are bound by the post-conviction court's findings of historical fact if those findings are supported by the evidence in the record." Cartrette v. Nooth, 284 Or.App. 834 840, 395 P.3d 627 (2017).

Petitioner's first through third assignments of error involve claims that his trial counsel was "inadequate" under Article I, sections 9, 10, 11, 13, and 20 of the Oregon Constitution and "ineffective" under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. A petitioner claiming inadequate assistance of counsel under the Oregon Constitution has the burden "to show, by a preponderance of the evidence, facts demonstrating that [1] trial counsel failed to exercise reasonable professional skill and judgment and that [2] petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). The standard under the United States Constitution for assessing whether counsel was constitutionally ineffective is "functionally equivalent." Montez v. Czerniak, 355 Or. 1, 6-8, 322 P.3d 487 (2014); see also McDonnell v. Premo, 309 Or.App. 173, 185, 483 P.3d 640 (2021), rev den, 369 Or. 507 (2022) ("[T]he state and federal tests for establishing prejudice are functionally similar.").

In his first assignment of error, petitioner argues that the post-conviction court erred in denying relief, because his trial counsel was inadequate and ineffective for failing to adequately communicate with him, such that his guilty plea was not knowing, voluntary, and intelligent. The evidence at the post-conviction hearing-including petitioner's plea agreement, the trial transcript, and trial counsel's deposition testimony-supports the postconviction court's findings that petitioner was satisfied with trial counsel's work on his case; that petitioner had read and understood his plea agreement; that he and trial counsel had discussed the plea agreement "in great detail" and "conferred extensively" about his case and his options; and that petitioner knew what he was doing when he pleaded guilty. Additionally, that evidence reflects that, prior to accepting petitioner's guilty plea, the trial court assured itself that petitioner understood the plea agreement, the rights he was waiving, and the consequences of pleading guilty. Therefore, the post-conviction court did not err in denying relief on that claim. See Wilson v. Armenakis, 144 Or.App. 587, 589, 928 P.2d 354 (1996), rev den, 324 Or. 560 (1997) (rejecting postconviction petitioner's claim that his plea was not knowing and voluntary, where post-conviction court found that the "petitioner executed a plea petition that set out the rights that he was waiving," that "trial counsel read the petition to petitioner before he entered his guilty plea," and that, "before accepting the plea, the trial court assured itself that petitioner's plea was knowing, voluntary and intelligent").

In his second assignment of error, petitioner argues that the post-conviction court erred in denying relief, because his trial counsel was constitutionally inadequate for failing to present mitigation evidence in support of a downward sentencing departure-in particular, a psychosexual evaluation. In rejecting that claim, the post-conviction court found that trial counsel had obtained a psychosexual evaluation but that, after discussing it with his trial counsel, petitioner decided not to submit that evaluation to the trial court because it was "more harmful than helpful." The postconviction court further found that trial counsel had also obtained and submitted to the trial court several letters speaking to petitioner's good character. Those findings are supported by the deposition testimony of petitioner's trial counsel, which the post-conviction court explicitly found to be credible, and support the post-conviction court's conclusion that trial counsel had exercised reasonable skill and judgment. That testimony shows that trial counsel obtained an "extremely detailed and comprehensive sex offender evaluation" of petitioner; that the evaluation "pretty much reinforced the idea that [petitioner] was a sexual predator"; that counsel discussed with petitioner that the evaluation would likely do more harm than good; and that petitioner decided to follow counsel's advice and not use the evaluation. That testimony further shows that trial counsel obtained 12 letters of support from petitioner's friends, family, and coworkers, which discussed petitioner's good moral character. Thus, the post-conviction court did not err in concluding that petitioner did not prove trial counsel failed to exercise reasonable professional skill and judgement regarding mitigation evidence. See Lichau v. Baldwin, 333 Or. 350, 360, 39 P.3d 851 (2002) ("[T]o be considered an exercise of professional skill and judgment, a lawyer's tactical decision * * * must involve a conscious choice by a lawyer either to take or to omit some action on the basis of an evaluation of * * * the likely costs and potential benefits of the contemplated action[.]" (Internal quotation marks omitted.)).

In his third assignment of error, petitioner argues that the post-conviction court erred in denying relief, because his trial counsel was inadequate and ineffective for failing to move to suppress certain statements that petitioner made to police. The testimony from petitioner's trial counsel-which, again, the post-conviction court explicitly found credible-supports the post-conviction court's finding that petitioner decided he did not want counsel to file the motion because he was facing up to 166 years in prison, and he was aware of the district attorney's express position that, if petitioner filed the motion to suppress, the state would be unwilling to negotiate any plea agreement. The postconviction court therefore did not err in denying relief on that claim. Cf. Barnett v. Brown, 319 Or.App. 257, 259, 509 P.3d 748, rev den, 370 Or 197 (2022) (rejecting post-conviction petitioner's claim that trial counsel was...