Maxfield v. Cain
| Decision Date | 19 October 2022 |
| Docket Number | A172028 |
| Citation | 322 Or.App. 405,520 P.3d 890 |
| Parties | Brandon MAXFIELD, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Ryan T. O'Connor argued the cause for appellant. Also on the brief was O'Connor Weber LLC.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
This is the third time this case is before us after we twice previously reversed and remanded the judgment denying petitioner post-conviction relief (PCR). Maxfield v. Nooth , 278 Or App 684, 377 P.3d 650 (2016) ( Maxfield I ); Maxfield v. Cain , 295 Or App 553, 435 P.3d 779 (2019) ( Maxfield II ). In this appeal, petitioner argues that the PCR court erred in finding that he was not prejudiced by his trial counsel's deficient performance at sentencing. We conclude that petitioner has established prejudice and is entitled to a new sentencing hearing. We therefore reverse and remand with instructions to grant post-conviction relief on petitioner's claim that trial counsel was inadequate and ineffective for failing to investigate and develop mitigating evidence for sentencing.
Petitioner was found guilty following a bench trial of three counts of robbery in the first degree and six counts of robbery in the second degree, based on petitioner robbing five different retail stores during a one-month period when he was 22 years old. At sentencing, the trial court imposed six sentences (one for each of the six victims), five to run consecutively, for a total of 40 years (480 months) in prison pursuant to Ballot Measure 11's mandatory minimum. ORS 137.700(2)(R), (S).1
Petitioner initiated post-conviction proceedings, claiming that trial counsel was ineffective during sentencing. Specifically, "[t]rial counsel failed to conduct an adequate and effective investigation into the petitioner's background" for the purpose of presenting mitigating evidence at sentencing.2 In support, petitioner introduced affidavits from friends and family members, and presented live testimony from a legal expert and a neuropsychological expert.3 The affidavits outlined petitioner's difficult childhood, which included many failures by the adults around him and drug use from an early age. The neuropsychological expert presented evidence regarding petitioner's neurological difficulties and their potential causes.
The original PCR court determined that counsel's failure to offer any mitigation evidence in light of the sentence his client was facing was deficient, but that petitioner had not demonstrated prejudice. On appeal, we reversed the judgment, determining that the court had applied an incorrect legal standard to the prejudice analysis. Maxfield I , 278 Or App at 689, 377 P.3d 650 (). On remand, the PCR court changed its original ruling and determined that trial counsel's performance was not actually deficient and denied relief to petitioner on that alternative basis. We reversed again, concluding that the court had exceeded the scope of remand. Maxfield II , 295 Or App at 556, 435 P.3d 779. After the second remand, the PCR court again determined that, despite counsel's deficiency, petitioner failed to demonstrate prejudice, and petitioner now appeals.
Focusing its finding on the original sentencing judge's rationale, the PCR court concluded that the additional evidence would not have made a difference at sentencing. As to the affidavits of petitioner's friends and family, the PCR court concluded that those would have had little impact because much of the information was in fact more aggravating than mitigating, and that some of the information was already known to the sentencing court. The PCR court discounted the import of the neuropsychological expert's conclusion that petitioner was impulsive because the court found that that conclusion was undermined by the degree of planning involved in petitioner's crimes. The court further reasoned that the expert's testimony that petitioner's issues were "hard wired" and difficult to treat could have been perceived as aggravating rather than humanizing. The PCR court determined that petitioner's written statement was both not credible and also more harmful than mitigating.
On appeal, the parties dispute whether the mitigating evidence petitioner presented is enough to establish prejudice; that is, whether the evidence raises "more than a mere possibility, but less than a probability" that, had trial counsel properly investigated potential mitigating evidence, the sentence would have been different. Maxfield I , 278 Or App at 688, 377 P.3d 650. Petitioner argues that the evidence was sufficient to demonstrate prejudice and emphasizes that the sentencing court had discretion as to whether it ran the Measure 11 sentences consecutively or concurrently, making it more likely that the mitigation evidence could have tended to affect the sentence. The superintendent responds that much of the new mitigating evidence was actually "a two-edged sword," if not strictly aggravating, and therefore contends that it is unlikely the evidence would have resulted in a shorter sentence.
We review PCR proceedings for errors of law. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). Findings of historical fact are binding on this court if there is evidence in the record to support them. Id . If the PCR court failed to make findings of fact on all of the issues—and there is evidence from which such facts could be decided more than one way—we will presume the facts were decided consistently with the PCR court's conclusions of law. Id .
As an initial matter, we observe that, because the prejudice analysis "should not involve any consideration of the individual judge or the factors that might or might not have motivated a specific judge to make a decision," the PCR court erred in focusing the inquiry on what would have impacted that particular sentencing judge. Pike v. Cain , 303 Or App 624, 636, 465 P.3d 277, rev. den. , 367 Or. 75, 472 P.3d 268 (2020) (internal quotation marks omitted).
In assessing whether counsel's deficient performance caused prejudice under Article I, section 11, of the Oregon Constitution, we must determine that there is more than a mere possibility, but not necessarily a probability, that counsel's deficient performance affected the outcome. Maxfield I , 278 Or App at 688, 377 P.3d 650. Prejudice under the federal constitution is established if the petitioner shows there is a reasonable probability that, but for counsel's deficient performance, the result would have been different. Hale v. Belleque , 255 Or App 653, 660, 298 P.3d 596, adh'd to on recons. , 258 Or App 587, 312 P.3d 533, rev. den. , 354 Or. 597, 318 P.3d 749 (2013). That is established if the probability is sufficient to undermine confidence in the outcome. Porter v. McCollum , 558 U.S. 30, 44, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009). The state and federal standards for determining the adequacy of legal counsel are functionally equivalent. See, e.g. , 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) (so acknowledging); Pike , 303 Or App at 633, 465 P.3d 277 ().
When the claim involves a failure to investigate mitigating evidence at sentencing, we evaluate whether there was "more than a mere possibility that an adequate investigation would have yielded information that could have been used at the sentencing hearing in a way that gave rise to more than a mere possibility that the outcome of the proceeding could have been different as a result." Monfore v. Persson , 296 Or App 625, 636, 439 P.3d 519 (2019) (citing Richardson v. Belleque , 362 Or. 236, 266-68, 406 P.3d 1074 (2017) (internal quotation marks omitted)).
The "more than a mere possibility, but less than a probability" standard can be difficult to apply in the context of mitigating evidence, so it is helpful to outline a methodology for its application. The first step is to determine the precise question before the sentencing court and the legal standard applicable to that question. See Strickland v. Washington , 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (); Snyder v. Amsberry , 306 Or App 439, 449-50, 474 P.3d 417 (2020) ().
The second step is to apply the "more than a mere possibility, but less than a probability" framework to the legal question before the sentencing court. To aid in our inquiry, and because the state and federal standards for ineffective assistance of counsel are "functionally equivalent," we turn to federal jurisprudence for guidance. Montez , 355 Or. at 6-7, 322 P.3d 487. To assess prejudice in sentencing, federal courts "must consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation." Andrus v. Texas , ––– U.S. ––––, 140 S. Ct. 1875, 1886, 207 L. Ed. 2d 335 (2020) (internal quotation marks and brackets omitted); see also Sears v. Upton , 561 U.S. 945, 956, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) (...
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