Peiffer v. Hoyt

• Decision Date: 19 February 2003
• Citation: 63 P.3d 1273,186 Or. App. 485
• Parties: Sharon L. PEIFFER, Appellant, v. Sonia E. HOYT, Superintendent, Oregon Women's Correctional Facility, Respondent.
• Court: Oregon Court of Appeals

63 P.3d 1273

186 Or. App. 485

Sharon L. PEIFFER, Appellant, v. Sonia E. HOYT, Superintendent, Oregon Women's Correctional Facility, Respondent.

99C-18990; A115146.

Court of Appeals of Oregon.

Argued and Submitted September 23, 2002.

Decided February 19, 2003.

Sara Dean Cromwell argued the cause for appellant. On the brief was Melinda M. Buel.

Kathleen Cegla, 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 DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

KISTLER, J.

Petitioner appeals from a judgment dismissing her amended petition for post-conviction relief. She argues that the post-conviction court should have found that her trial attorney was constitutionally inadequate for failing to file a motion to suppress. We affirm.

While petitioner was staying at Gregory McLean's home, police officers searched his home pursuant to a warrant. Among other things, the warrant authorized the officers to search for amphetamine, evidence of sales and distribution of amphetamine, documents that tended to show the source of the amphetamine, documents that tended to show ownership or control over the amphetamine, and documents that tended to show the true identity of persons present at or residing in McLean's house.

Petitioner was present when the officers executed the warrant. The officers asked petitioner for identification, which she stated was in her wallet on the floor. An officer retrieved the wallet and located a driver's license. The license had petitioner's photograph on it and a name that petitioner stated was hers. During this search for petitioner's identification, the officers also located three photographs of petitioner standing in front of a background that is similar to that used for driver's license photographs. The officers examined petitioner's identification and discovered that someone had tampered with the license; specifically, the officers suspected that the photograph had been altered. When questioned, petitioner admitted that the license and many of the other documents in her wallet were forged or stolen.

During a more extensive search of the house, the officers found counterfeit checks and birth certificates, which were located in folders on a desk; spray adhesive that is used to manufacture false identification; and other stolen and altered identification. The post-conviction record does not disclose whether the folders containing the counterfeit checks and birth certificates were open or closed when the officers first found them. The record also does not disclose, if the folders were closed, which one of the officers first opened them or why that officer did so; that is, the record does not disclose whether the officer who first opened the folders, if they were closed, did so to look for the kinds of documents for which the warrant authorized him or her to search.

The state indicted petitioner for two counts of attempted theft, two counts of forgery, and three counts of possessing a forged instrument. Petitioner's trial counsel did not move to suppress the evidence of forgery that the officers found when they executed the warrant. That evidence was admitted in petitioner's criminal trial, and she was convicted of all seven counts.

Petitioner filed a petition for post-conviction relief. In her amended petition, she alleged that her trial counsel "failed to file a motion to suppress the evidence which was seized illegally from [petitioner] and which, if such motion had been filed, would have changed the outcome of [petitioner's] case." After considering the evidence, the post-conviction court issued the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"1. Petitioner received adequate assistance of counsel.

"2. Petitioner failed to prove counsel ineffective for not filing a motion to suppress. Such a motion would have been denied.

"CONCLUSIONS OF LAW

"1. Based on the findings of fact set forth above, in the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution and as articulated by the United States Supreme Court in Strickland v. Washington, 446[466] U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), or the Constitution of the State of Oregon.

"2. Petitioner did not prove any of her claims by a preponderance of the evidence."

Based on those findings and conclusions, the post-conviction court entered judgment against petitioner.

To prevail on her post-conviction claim, the burden was on petitioner to prove, "by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). As we understand petitioner's argument, both the first and second prongs of her inadequate assistance claim rest on the same factual premise. Petitioner contends that the officers who executed the warrant opened the folders on the desk in McLean's house to search for evidence of forgery. According to petitioner, they did not open the folders to search for evidence of drugs or for any other evidence for which the warrant authorized them to search. It follows, petitioner concludes, that the officers' search exceeded the scope of the warrant and that reasonable counsel would have filed a motion to suppress the evidence that the officers illegally discovered. Petitioner also argues that the admission of the illegally obtained evidence could have affected the trial court's decision that she was guilty of forgery.

Defendant responds that "the police officers were in a lawful vantage point and were searching within the parameters of the search warrant when they found the documents that ultimately were used to convict petitioner." As we understand defendant's argument, it turns on the proposition that some of the evidence of forgery was in plain view and that, to the extent that the officers opened the folders and discovered other evidence of forgery, they did so because they were looking for documents for which the warrant authorized them to search.¹ Defendant reasons that, because the officers were acting within the scope of the warrant, either petitioner's trial counsel reasonably decided not to file a motion to suppress or petitioner suffered no prejudice as a result.² As the parties frame the issue on appeal, petitioner's inadequate assistance claim rests on the following factual premise: The folders were closed when the officers first came upon them, and the officers did not open the folders to look for anything for which the warrant authorized them to search; rather, they opened them to look for evidence of forgery. The post-conviction court did not find that petitioner had proved, by a preponderance of the evidence, the factual premise upon which her inadequate assistance claim depends. Rather, it found precisely the opposite. It follows that, for us to hold on appeal that the post-conviction court erred in not granting petitioner relief, petitioner must convince us that the evidence before the post-conviction court permitted only one reasonable conclusion—i.e., that the folders were closed when the officers first found them and that the officers opened the folders to look for evidence of forgery.³ Before turning to that issue, we note a threshold question that the Supreme Court has instructed us to consider in every case: Has petitioner preserved the error that she seeks to raise on appeal? State v. Wyatt, 331 Or. 335, 346, 15 P.3d 22 (2000).⁴

On that point, we note that petitioner filed a trial memorandum in the post-conviction court. She did not argue in her memorandum that the evidence before the court permitted only one reasonable conclusion, nor did she make a separate motion to withdraw the factual issue from the factfinder because only one reasonable conclusion was permissible. See Bend Tarp and Liner, Inc. v. Bundy, 154 Or.App. 372, 376, 961 P.2d 857,

rev. den., 327 Or. 484, 971 P.2d 408 (1998) (rejecting the plaintiff's appellate claim that it was entitled to prevail as a matter of law because it had failed to "ask the trial court to withdraw the claim or issue from the factfinder"); Wilkes v. Zurlinden, 146 Or.App. 371, 378, 932 P.2d 584,

vac'd on other grounds, 325 Or. 489, 940 P.2d 518 (1997), adh'd to on remand, 152 Or.App. 130, 952 P.2d 569 (1998), rev'd in part on other grounds, 328 Or. 626, 984 P.2d 261 (1999) (same). Finally, after the post-conviction court issued its findings of fact and conclusions of law, petitioner did not object to the post-conviction court's factual findings on the ground that the evidence required the court, as a matter of law, to find the facts differently. See Mutual of Enumclaw Insurance Co. v. Hambleton, 84 Or.App. 343, 348, 733 P.2d 948,

rev. den., 303 Or. 534, 738 P.2d 977 (1987) (recognizing that such an objection would have preserved the issue for appellate review). Although petitioner urged the post-conviction court to find the facts in her favor, she never told the court that it was required to do so as a matter of law. The factual argument that petitioner made below failed to preserve the legal issue that she seeks to raise on review. Cf. State v. Lovins, 177 Or.App. 534, 537, 33 P.3d 1060 (2001).⁵

Ordinarily, that would be the end of this case. However, a footnote in one of our cases stands for the proposition that a plaintiff in a civil case tried to the court may argue on appeal that he or she was entitled to prevail as a matter of law without having preserved that issue below. See Millsap v. Eugene Care Center, 68 Or.App. 223, 228 n. 4, 682 P.2d 795,

rev. den., 297 Or. 547, 685 P.2d 997 (1984). The footnote in Millsap is squarely inconsistent...