Lovelace v. Zenon, C-12419

• Decision Date: 17 March 1999
• Docket Number: C-12419
• Citation: 976 P.2d 575,159 Or.App. 158
• Parties: Scott Allen LOVELACE, Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institution, Respondent. 94; CA A96932.
• Court: Oregon Court of Appeals

Page 575

976 P.2d 575

159 Or.App. 158

Scott Allen LOVELACE, Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institution, Respondent.

94C-12419; CA A96932.

Court of Appeals of Oregon.

Argued and Submitted Dec. 11, 1998.

Decided March 17, 1999.

John E. Storkel, Salem, argued the cause for appellant. With him on the brief was Storkel & Grefenson P.C.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

In this post-conviction relief case, we write only to address petitioner's claim ¹ that his trial counsel ² was constitutionally inadequate because counsel failed to object to petitioner's sentence under the Dangerous Offender Act (Act), ORS 161.725, on the ground that petitioner was entitled to a jury determination of whether the criminal act "seriously endangered the life or safety of another." ORS 161.725(1)(b).

The material facts are undisputed. In 1987, a jury convicted petitioner for assault in the second degree, which is a class B felony. ORS 163.175. At sentencing, the trial court determined that petitioner's acts seriously endangered the life or safety of another and sentenced him as a dangerous offender. Petitioner's trial counsel did not object to the trial court making that determination. The post-conviction court denied petitioner's claim for relief. As to the issue here, the court based its ruling on the fact that State v. Mitchell, 84 Or.App. 452, 734 P.2d 379 (1987), which established a defendant's right to have a jury decide whether the criminal act seriously endangered another, ³ "was handed down after petitioner's conviction." The court concluded: "When an argument is not well settled at law, trial counsel cannot be constitutionally inadequate for failing to make it."

In determining whether representation was inadequate, we must evaluate whether counsel failed to "do those things reasonably necessary to diligently and conscientiously advance the defense." Krummacher v. Gierloff, 290 Or. 867, 874, 627 P.2d 458 (1981). That determination includes an examination into whether counsel failed to raise reasonable issues at trial that were "fundamental" to a petitioner's defense. Haynes v. State of Oregon, 121 Or.App. 395, 398-99, 854 P.2d 949 (1993).

Here, petitioner argues that, notwithstanding Mitchell's publication date, the precedent supporting Mitchell was well established and "should have alerted [trial] counsel to the premise articulated in Mitchell." Petitioner further argues that, because trial counsel should have been aware of Mitchell's premise, "[t]rial counsel had an obligation to raise this issue on petitioner's behalf." We agree.

The premise to which petitioner refers, the right to have a jury decide the elements of a crime, is secured by Article I, section 11, of the Oregon Constitution. The cases that established that premise and that support Mitchell are State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982), and State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), both of which were decided at least five years before petitioner's trial. In each case, the Supreme Court established a "simple principle" for distinguishing whether the inquiries into sentence enhancements are for the jury or for the court: "[T]he facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court." Quinn, 290 Or. at 405, 623 P.2d 630; see also Wedge, 293 Or. at 608, 652 P.2d 773 (holding that a determination of whether a defendant used a gun during a robbery, which enhanced the penalty, was for a jury to decide). Here, that principle's application is clear.

Under the Act, the predicate determination for non-Class A felonies is whether the act "is a felony that seriously endangered the life or safety of another." ORS 161.725(1)(b). As we explained in Mitchell, that inquiry focuses on the facts of the crime, not the characteristics of the criminal, and thus fits squarely within the "simple principle" analysis. 84 Or.App. at 458, 734 P.2d 379. A reasonably competent defense attorney would have been able to locate Mitchell's precedent and evaluate its application to petitioner's case with relative ease.

Moreover, because sentencing under the Act involved the possibility that petitioner would receive a more severe sentence, petitioner's trial counsel should have explored related legal arguments to protect petitioner from such a result. Additionally, because the inquiry at issue here involved petitioner's constitutional right to a jury trial, id., his trial counsel was obligated reasonably to protect that right. In sum, petitioner's trial counsel had good reason to prepare himself on the law with respect to sentencing inquiries and had access to relatively straightforward precedent. Trial counsel's failure in that regard was constitutionally inadequate representation. See Krummacher, 290 Or. at 875, 627 P.2d 458 ("[C]ounsel must * * * prepare himself on the law * * * so that he is equipped to * * * represent the defendant in an informed manner.").

Notwithstanding, respondent argues that, because "at the time petitioner was sentenced, no appellate court had [applied that principle to the Act,] * * * trial counsel reasonably decided * * * not to object to the * * * sentence on th[at] basis." Respondent relies on Wells v. Peterson, 315 Or. 233, 844 P.2d 192 (1992), for that proposition.

In Wells, the Supreme Court held that trial counsel's failure to challenge a sentence on the ground that it violated a statute "was not inadequate assistance of counsel because, at the time of trial, the meaning of the statute was not clearly settled." Id. at 236, 844 P.2d 192. Wells does not aid respondent here, however, because the sentencing question there had been discussed by this court "with varying results[.]" Id. In other words, although examined, it was an unsettled question. Here, in contrast, the "simple principle" analysis, establishing the right to have a jury decide the elements of a crime, was well settled and its application to the Act, although untested, was analytically straightforward. Because the argument was available and apparent at the time of petitioner's trial, an effective defense attorney at least would have raised the issue in the trial court and preserved it for appeal. ⁴

Additionally, respondent argues that, "because this is an inadequate assistance claim, petitioner must show that he was prejudiced." Respondent is correct that, "[t]o prove inadequate assistance of trial counsel, the petitioner must prove that counsel failed to do the things reasonable necessary to advance the defense and that the petitioner suffered prejudice as a result." Davis v. Armenakis, 151 Or.App. 66, 69, 948 P.2d 327 (1997), rev. den. 327 Or. 83, 961 P.2d 217 (1998) (emphasis added). Respondent argues that petitioner here failed to establish prejudice because he failed to show that a jury would have reached a different conclusion than did the court.

However, establishing prejudice in this instance is not dependent on what the jury might have decided. Under the circumstances of this case, the issue would not be before the jury. The requirements in the dangerous offender statute--that the conduct "seriously endangered the life or safety of another"--are enhancement factors, not elements of the offense of assault in the second degree, for which petitioner was convicted. However, the state did not separately plead those factors, and, accordingly, petitioner was not given notice that he would have to defend against them. Because the state failed to give petitioner the required notice that he was charged with being a dangerous offender, the jury could not have found that he was. Petitioner demonstrated prejudice here by the imposition of a 30-year sentence when the state did not plead or prove the elements necessary for that sentence.

Reversed with instructions to vacate petitioner's sentence and to remand for resentencing; otherwise affirmed.

WOLLHEIM, J., dissenting.

The majority's holding, in essence, requires trial counsel to do the job of an appellate court. This is the danger of applying "pure hindsight," Turner v. Maass, 103 Or.App. 109, 110 n. 3, 795 P.2d 617, rev. den. 310 Or. 547, 800 P.2d 789 (1990), to measure the effectiveness of counsel at trial, and for that reason I respectfully dissent.

Trial counsel is required to "do those things reasonably necessary to diligently and conscientiously advance the defense." Krummacher v. Gierloff, 290 Or. 867, 874, 627 P.2d 458 (1981). However, the majority dismisses the fact that the meaning of the Dangerous Offender Act (the Act), ORS 161.725, "was not clearly settled." Wells v. Peterson, 315 Or. 233, 236, 844 P.2d 192 (1992). Instead, the majority, with the benefit of studied and deliberate hindsight, explains that the established "simple" legal principle announced in State v. Quinn, 290 Or. 383, 405, 623 P.2d 630 (1981), and State v. Wedge, 293 Or. 598, 607, 652 P.2d 773 (1982), was clear enough at the time of petitioner's trial to require his trial counsel to have applied that principle to the Act even though no appellate court had yet applied the principle to the Act.

I take exception to the majority's approach for three reasons. First, it effectively ignores the caveat that "application of this simple principle is not always so simple." 293 Or. at 607, 652 P.2d 773. I start from the general premise that courts are obligated to interpret statutes as constitutional, "if that can be done." State v. Charlesworth/Parks, 151 Or.App. 100, 107, 951 P.2d 153 (1997), rev. den. 327 Or. 82, 961 P.2d 216 (1998). Additionally, in general, "there is no right to a jury for sentencing" under the Oregon or United States Constitutions. Wedge, 293 Or. at 605, 652 P.2d 773. The Act sets...