Norwood v. Premo

• Decision Date: 23 August 2017
• Docket Number: A159459.
• Citation: 287 Or.App. 443,403 P.3d 502
• Parties: Michael NORWOOD, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

287 Or.App. 443

403 P.3d 502

Michael NORWOOD, Petitioner-Appellant,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A159459.

Court of Appeals of Oregon.

Submitted April 5, 2017.

August 23, 2017

Jason Weber and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Egan, Presiding Judge, and Lagesen, Judge, and Linder, Senior Judge.

LINDER, S.J.

The issue presented in this post-conviction appeal is whether a defense lawyer exercising reasonable professional skill and judgment would have challenged the evidence at petitioner's criminal trial as insufficient to establish that he was armed with a deadly weapon during his commission of a burglary. To resolve that issue, we must determine whether an unloaded firearm qualifies as a "deadly weapon" when the firearm is contained in a closed, zippered carrying case and is possessed together with a separate bag that contains ammunition for the firearm. As we will explain, we conclude that those circumstances do not satisfy the statutory meaning of deadly weapon for purposes of first-degree burglary. We further conclude that, because petitioner's criminal trial counsel did not challenge the sufficiency of the state's evidence, petitioner was denied reasonably competent counsel and was prejudiced by the greater sentence he received based on his possession of a deadly weapon in committing the burglary. The post-conviction court therefore erred in denying post-conviction relief, and we reverse and remand.

I. BACKGROUND

The relevant facts are not disputed. Petitioner was charged by indictment with burglary in the first degree, theft in the first degree (five counts), felon in possession of a firearm (four counts), and aggravated theft in the first degree. The first-degree burglary charge alleged that petitioner had "unlawfully and knowingly enter[ed] or remain[ed] in a dwelling * * * with the intent to commit the crime of theft therein, while armed with a deadly weapon [.]" Petitioner waived his right to a jury and was tried by the court. At trial, the state presented evidence that petitioner had unlawfully entered an unoccupied dwelling; once inside, he stole four of the victim's 14 firearms and all of the victim's ammunition. One of the stolen firearms was a Smith and Wesson AR-15. According to the victim, the AR-15 was fully functional, unloaded, and inside a closed, zippered, black "carry bag." The victim kept the ammunition for his various firearms in a separate bag. That bag included ammunition for the AR-15, but not for any of the other three firearms stolen in the burglary. The ammunition for the AR-15 consisted of "25 P-mags fully loaded." The victim explained that a "P-mag" is "a magazine that fits in the bottom of the AR-15 that holds the rounds so you can shoot—every time you pull the trigger, it loads one in."

The principal issue at petitioner's criminal trial was identity—that is, whether petitioner was the person who had entered the dwelling and taken the victim's firearms and ammunition. In closing argument, the state, in urging that the allegations relevant to first-degree burglary were satisfied, pointed to the fact that four operational firearms were taken, together with the ammunition; beyond that, the state focused on evidence that petitioner was the person who committed the burglary. Defense counsel did not, by motion for judgment of acquittal or through closing argument, challenge the evidence as insufficient to show that petitioner possessed a deadly weapon. Cf. State v. McCants/Walker , 231 Or.App. 570, 576, 220 P.3d 436 (2009), rev'd on other grounds by State v. Baker-Krofft , 348 Or. 655, 239 P.3d 226 (2010) (in bench trial, sufficiency of evidence may be challenged either by formal motion for judgment of acquittal or by clearly raising issue in closing argument).¹ At the conclusion of the evidence, the trial court found petitioner guilty of all charges, including first-degree burglary. In sentencing petitioner on that charge, the trial court ranked the burglary as a crime category 9, rather than a 7, based on petitioner's possession of a deadly weapon during the commission of the crime.² Under that crime category ranking, the trial court imposed an upward departure sentence of 144 months incarceration, followed by 36 months post-prison supervision.

Petitioner brought this action for post-conviction relief, alleging that he was denied adequate and effective assistance of criminal trial counsel under the state and federal constitutions. In particular, petitioner claimed that the evidence was insufficient to show that he possessed a deadly weapon when he committed the burglary, and that competent counsel would have moved for a judgment of acquittal and challenged petitioner's burglary sentence on that ground. Petitioner relied on ORS 161.015(2), which defines "deadly weapon" as "any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury." (Emphasis added.) The evidence at petitioner's criminal trial established that the AR-15, the only stolen firearm for which there was ammunition, was unloaded and in a carry bag, while the loaded magazines for it were in another bag. Such a firearm, petitioner argued, was not "presently capable" of causing death or serious physical injury.

In response, the state³ argued that "[a]ll that's required is that a weapon be operable and that there be ammunition for that weapon." The ammunition in this instance, the state stressed, "was loaded in a PMAG, which means essentially you just have to slip it into the weapon and the weapon is ready to fire." According to the state, the fact that the AR-15 was in a case was "not enough to stop a weapon from being deadly" and was at most a "minor hurdle to loading a weapon." Petitioner replied by emphasizing that the AR-15 and the ammunition were not "together" in such a way that loading the AR-15 required simply slipping an ammunition magazine into the rifle. Instead, the AR-15 was in one case, while the ammunition for it was in a separate bag, mixed in with ammunition for firearms that petitioner had not stolen. According to petitioner, "There's a lot of steps that [would] need to be taken before the AR-15 is presently capable, one of which [is] figuring out which ammunition would even go into that gun."

The post-conviction court denied relief. In explaining its ruling, the court noted that the dispute raised an "interesting issue," no case law was directly on point, and the issue was one that "the Court of Appeals can take a look at * * * and probably give us some more guidance." Factually, the post-conviction court found that

"[petitioner] entered and took numerous unloaded weapons but took ammunition that fit one of them. It would have taken only seconds to load that gun. [Petitioner] therefore [had] an easily loaded gun inside someone else's home."

In the post-conviction court's view, such a circumstance fell within the danger that the legislature sought to avoid—i.e. , the risk to an occupant posed by someone who unlawfully enters and remains in a home while having the capability of using a weapon. The court concluded that a motion for judgment of acquittal challenging the sufficiency of the evidence on the deadly weapon allegation would have failed, and petitioner therefore was not denied adequate representation by counsel. Petitioner then brought this appeal.

II. DISCUSSION

To prevail on a post-conviction claim for inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must prove, by a preponderance of the evidence, facts demonstrating that counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result. Trujillo v. Maass , 312 Or. 431, 435, 822 P.2d 703 (1991). As to the first part of the test, "[i]f a lawyer exercising reasonable professional skill would have recognized the existence of an issue and would have concluded under the circumstances that the benefits of raising it outweighed the risks of doing so, failing to raise the issue may constitute inadequate assistance." Krieg v. Belleque , 221 Or.App. 36, 40, 188 P.3d 413 (2008). As to the second part of the test, "a petitioner must show that his or her trial counsel's deficiency had a tendency to affect the verdict." Short v. Hill , 195 Or.App. 723, 729, 99 P.3d 311 (2004), rev. den. , 338 Or. 374, 110 P.3d 113 (2005).⁴

On appeal, petitioner essentially renews the arguments he made to the post-conviction court. Petitioner claims, first, that his criminal trial counsel was constitutionally inadequate for failing to move for a judgment of acquittal challenging the evidence as insufficient to show that he possessed a deadly weapon. Petitioner argues that he was prejudiced by that failure, because such a motion would have resulted in his acquittal on the burglary charge. Second, petitioner claims that his criminal trial counsel was constitutionally inadequate for failing to object to his sentence on the burglary charge, which was based on a higher crime classification due to his possession of a deadly weapon while committing the offense. On that claim, he asserts prejudice based on the greater sentence that he received on the burglary conviction due to the finding that he possessed a weapon during the crime's commission. Both claims turn on the same threshold legal issue—viz. , the meaning of "deadly weapon" for purposes of burglary in the first degree. We therefore begin with that issue.

A. The Meaning of "Deadly Weapon"

To resolve the meaning of "deadly weapon," we follow the familiar interpretative methodology set out in State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009) (refining analysis articulated in PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d...