Monfore v. Persson

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: LAGESEN, P. J.
• Citation: Monfore v. Persson, 296 Or App 625, 439 P.3d 519 (Or. App. 2019)
• Decision Date: 20 March 2019
• Docket Number: A161060
• Parties: Victoria Marie MONFORE, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

296 Or.App. 625

439 P.3d 519

Victoria Marie MONFORE, Petitioner-Appellant,

v.Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

A161060

Court of Appeals of Oregon.

Argued and submitted January 4, 2018.

March 20, 2019

Jason Weber argued the cause for appellant. Also on the briefs was O’Connor Weber LLC.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and DeHoog, Judge.^*

LAGESEN, P. J.

While employed as a bookkeeper for two related Eugene companies, petitioner started writing company checks to herself, stealing over $ 1.5 million over the course of six years. One of the companies finally caught on and reported her to police, at which point petitioner quickly confessed and then pleaded guilty to 84 charges of various theft offenses. The trial court sentenced her to 23 years, nine months’ incarceration, based in part on its view that petitioner’s crime forced one of the companies to go out of business, leaving 85 people without jobs.

Petitioner now seeks post-conviction relief from her sentence and some of her convictions. The primary issues before us are whether petitioner is entitled to relief from some of her convictions on the ground that her trial counsel was inadequate and ineffective for not moving to dismiss the charges as time barred, and whether she is entitled to relief from her sentence on the ground that her trial counsel was inadequate and ineffective for failing to conduct an investigation into the accuracy of the state’s contention that petitioner’s thefts caused the closure of a company. For the reasons that follow, we reject petitioner’s challenge to her convictions, but conclude that, under Richardson v. Belleque , 362 Or. 236, 406 P.3d 1074 (2017), petitioner is entitled to a new sentencing hearing because her lawyer’s decision not to investigate the state’s claim that petitioner’s theft caused one of the companies to fail did not comport with constitutional standards. We therefore reverse and remand with directions to the trial court to grant relief on petitioner’s claim regarding the adequacy of trial counsel’s sentencing investigation and order a new sentencing proceeding.

I. BACKGROUND

A. Underlying Criminal Proceedings

Petitioner worked for 10 years in the accounts payable department of My Little Salesman. She also did the same type of work for a related company, IP Koke. Over six of those 10 years, from 2003 to 2009, she stole a total of $ 1,563,153.22 from the two companies. She did so by forging 365 checks to herself. Petitioner primarily took money from IP Koke, until it closed and let go all of its employees in November 2008. Petitioner then stole from My Little Salesman until she was fired for incompetence in June 2009. She used the money to gamble and to travel to various casinos, making numerous trips to Las Vegas.

After petitioner was fired, Pierce, one of the owners of both My Little Salesman and IP Koke, discovered the thefts and reported them to the police. Petitioner was arrested and, during a police interview, confessed to taking money from both IP Koke and My Little Salesman. The state then charged petitioner with 88 theft offenses, although it later dismissed the first four counts as barred by the statute of limitations. Petitioner pleaded guilty to the remaining 84 counts, with open sentencing.

At sentencing, the state noted that petitioner’s sentencing exposure was 80 to 90 years, but urged the court to sentence her to 285 months—23 years, nine months. The state argued that petitioner’s conduct had caused IP Koke to close and its employees to lose their jobs, warranting a long sentence: "It’s not a matter of how many checks she wrote. It’s a matter of the number of victims that she amassed and the damage that she caused and that she knew she was causing." Pierce and several of the employees who had lost their jobs made statements blaming petitioner’s thefts for the company’s closure, and the hardships suffered by the former employees as a result.

Petitioner’s trial counsel, in response, opted not to dispute that the company’s closure was the product of petitioner’s thefts. Although counsel knew that that was the position that the state was going to take, and petitioner and her family members had requested that trial counsel investigate the claim that petitioner’s conduct was the cause of IP Koke’s closure, counsel decided not to look into it at all. Counsel thought that the best strategy was to "beg[ ] for mercy," without suggesting that the company failed for reasons other than petitioner’s conduct, and said that he "had not signed up for that job of investigating whether IP went out of business because of mismanagement or petitioner’s behavior, or both, and that was why [he] was so firm in refusing to get involved in such a strategy." Consistent with that strategy choice, counsel argued at sentencing that petitioner’s thefts were the product of her gambling addiction, that petitioner’s prompt confession demonstrated that she had accepted responsibility as best she could, and that the harm that petitioner’s addiction had caused to her own family all pointed toward lenient treatment. Counsel also provided the court with information regarding sentences imposed in other business embezzlement cases, all of which were shorter than the sentence advocated by the state. Some of those cases involved thefts of greater amounts of money than that taken by petitioner, and counsel urged the court to conclude that the state’s proposed sentence was too long in comparison.

The trial court went with the state’s recommendation. In explaining its sentencing choice—and why it was imposing a longer sentence than those imposed in the other business embezzlement cases identified by trial counsel—the court emphasized the extent of the harm caused by petitioner’s conduct:

"When [trial counsel] makes that argument in reading through each and every one of those [other cases], I can find distinguishing differences in your case.

"The activity was longer. The money might have been less, but there were far more victims. The harm was far greater here than it was in those cases.

"* * * * *

"And the destruction, although devastating to those victims, if you add up that destruction and this destruction, you are in a different ball park. Okay.

"* * * * *

"And you’re a thief, regardless of how you spent the money. And you caused devastation on a magnitude, if you count the companies and 87 victims, that may never recover. And you can’t help them recover."

The trial court reasoned further that the fact that petitioner "continue[d] to feed off of" My Little Salesman after IP Koke closed demonstrated that petitioner was "somebody who would do it again." Thus, a 285-month sentence was justified. The court observed that the sentence ultimately represented approximately "six months per victim." The court denied petitioner eligibility for alternative incarceration programs, "given the number of victims and given the devastation that [petitioner] * * * brought on these people." The court ordered petitioner to pay restitution on each count, including the four counts that had been dismissed. Petitioner’s trial counsel did not object to the award of restitution with respect to the dismissed counts.

Petitioner appealed—unsuccessfully.

B. Post-Conviction Proceedings

After her appeal failed, petitioner filed this case. She alleged that her trial counsel and appellate counsel were inadequate and ineffective, in violation of her rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, in a number of different ways. As relevant to the issues before us now, petitioner alleged that trial counsel was inadequate and ineffective for (1) not moving to dismiss Counts 5 through 40 as barred by the then-applicable three-year statute of limitations, ORS 131.125(6)(a) (2009), amended by Or. Laws 2012, ch. 70, § 2; (2) not hiring a forensic accountant or otherwise investigating the assertion that petitioner’s conduct caused IP Koke to close; and (3) not objecting to the imposition of restitution with respect to the dismissed counts. In support of her claim that trial counsel was inadequate and ineffective for not investigating the harm caused by petitioner’s theft, petitioner introduced evidence of newspaper articles about IP Koke’s closure that explained the different factors that led to the closure, including changes in the printing industry, declining customer orders, and the poor economy. Petitioner also introduced evidence from an accountant who opined that factors other than petitioner’s thefts led to the closure of IP Koke.

The post-conviction court entered a judgment denying relief on all grounds, even though defendant, the superintendent of the Coffee Creek Correctional Facility, conceded that the imposition of restitution on the dismissed counts was in error.¹ Regarding petitioner’s claim that trial counsel was inadequate and ineffective for not moving to dismiss Counts 5 through 40 as time barred, the court concluded:

"Petitioner argues that claims 5-40 were outside the statute of limitations and that the trial attorney was inadequate for allowing her to plead to those counts. The original information was amended on Feb. 12, 2010 (Exhibit 6) to charge Theft by Deception which allows the 3 year limitation to be increased to 6 years if the charges have a material element of fraud or breach of fiduciary duty. The charges were therefore within the 6 year limitation and there was no inadequacy in petitioner pleading to those counts."

As to petitioner’s claim regarding trial counsel’s failure to investigate the role that petitioner’s conduct may have played in the closure of IP Koke, the post-conviction court determined:

"Petitioner’s claims concerning sentencing revolve

...