Pike v. Cain

• Jurisdiction: Oregon
• Citation: Pike v. Cain, 303 Or App 624, 465 P.3d 277 (Or. App. 2020)
• Docket Number: A164666
• Parties: Adrian Leslie PIKE, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals
• Decision Date: 22 April 2020

303 Or.App. 624

465 P.3d 277

Adrian Leslie PIKE, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A164666

Court of Appeals of Oregon.

Submitted February 26, 2019.

April 22, 2020

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

While on leave, petitioner, a decorated infantryman in the Army, attended the St. Paul Rodeo with a group of friends from his Army unit. He and his friends got drunk and got into a fight with another group of men. In the course of that fight, petitioner cut another man's throat. For that conduct, he pleaded guilty to one count of second-degree assault, a Measure 11 offense. As part of the plea agreement, the state and petitioner agreed that petitioner would be eligible for a downward departure sentence under ORS 137.712 (2015), amended by Or. Laws 2019, ch. 553, § 13, provided that the court found the required "substantial and compelling reasons" to depart. At sentencing, the state argued that such reasons did not exist, while petitioner's trial counsel attempted to convince the court that petitioner's military career was a reason to downwardly depart to a term of probation, so that petitioner could continue his military service. Trial counsel, however, did not present to the court a developed picture of petitioner's military history and the high level of service that he has provided. Counsel also did not point out to the court that OAR 213-008-0002 (1)(a)(J)¹ explicitly recognizes servicemember status as a mitigating factor that can be a substantial and compelling reason for a downward departure. Unpersuaded by counsel's case, the court sentenced petitioner to the presumptive 70 months' incarceration.

Petitioner now seeks post-conviction relief from his sentence. He contends that his trial counsel was inadequate and ineffective for, among other things, failing to investigate and present evidence of his service in the military and, relatedly, argue petitioner's status as a servicemember as a mitigating factor when seeking a downward departure from Measure 11 sentencing.

We conclude that, under Richardson v. Belleque , 362 Or. 236, 406 P.3d 1074 (2017), petitioner is entitled to a new sentencing hearing because his trial counsel's decision not to further develop the evidence of petitioner's military service, and his failure to argue for a downward departure under ORS 137.712 (2015) and OAR 213-008-0002(1)(a)(J) based on petitioner's servicemember status, did not comport with constitutional standards. 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 further evidence pertaining to petitioner's military service.

I. BACKGROUND

A. Underlying Criminal Proceedings

At the time of the incident leading to petitioner's conviction, he had been an infantryman in the Army for almost four years. Over the course of his service, petitioner served in Afghanistan in a "designated imminent danger pay area" and also received numerous military awards and commendations. Those awards included the following: "Afghanistan Campaign Medal w/ Campaign Star," "Army Commendation Medal," "Army Achievement Medal," "Army Good Conduct Medal," "National Defense Service Medal," "Global War on Terrorism Service Medal," "Army Service Ribbon," "Overseas Service Ribbon," "NATO Medal," "Expert Infantryman Badge," and "Driver and Mechanic Badge w/ Driver-Wheeled Vehicle(s) Clasp." Only a small percentage of servicemembers receive the Expert Infantryman Badge for distinctive service, and petitioner's certificate of discharge—issued after his direct criminal proceedings but before the post-conviction hearing—would later note his "Continuous Honorable Active Service."

As for the incident, petitioner was at the St. Paul Rodeo with some friends from his Army unit when his group got into a fight with another group of men. Accounts of how the fight started vary, but petitioner was very intoxicated and, in the end, petitioner cut a man's throat with his Army-issued knife. The wound required three stitches.

Petitioner was indicted on one count of assault in the second degree and one count of attempted murder. With the advice of counsel, he entered into a plea agreement under which he pleaded guilty to the assault charge in exchange for the dismissal of the attempted murder charge. Assault in the second degree is a Measure 11 offense with a presumptive sentence of 70 months. As noted, the state and petitioner agreed, as part of the plea deal, that ORS 137.712 (2015) authorized the trial court to downwardly depart from the presumptive sentence if the court found substantial and compelling reasons to do so.

Petitioner's objective at sentencing was to persuade the sentencing court to grant petitioner a downward departure to probation by presenting evidence that petitioner "had a career in the military, that he was doing well there and would continue to do well there, that the military offered structure and required accountability, and that it would best protect society if [petitioner] remained in the military and continued with his treatment." The strategy was to argue that petitioner was engaged in mutual combat when he assaulted the victim and that petitioner was fit for probation because he took responsibility for his actions and, if allowed to remain in the military, could continue to do well and get the help that he needed in the form of anger management classes and an alcohol abuse treatment program. Petitioner and his trial counsel prepared to implement this strategy by having petitioner evaluated for fitness for probation by Correctional Services, Inc., a private business. They also arranged for petitioner's platoon sergeant in the Army to testify on his behalf.

Trial counsel advised petitioner to, during the evaluation, "own" what he had done and his alcohol problem. At the evaluation, petitioner explained, "I was arrested because a fight broke out and two people were stabbed including myself. I pled guilty for assault on the victim that night." When asked what he would change about himself in light of that incident, petitioner responded, "I definitely don't plan to drink like that again. I surround myself with different people now. That night could have been changed by not being around those people." Petitioner, however, denied having a problem with alcohol, and the evaluator wrote that petitioner "does not see that he needs to change anything about himself in regards to this incident other than changing his friends." The evaluator also noted as areas of concern petitioner's assaultive record (the month before this incident, he had completed probation stemming from a previous fight that he had been in while drunk), his alcohol problem, and the fact that petitioner lived out of state. Despite those concerns, the evaluator concluded, "The outcome that would be the most beneficial for all involved is for [petitioner] to remain in the military and serve his probation under their auspices. He has a higher likelihood of a positive career and chance at a productive life if he continues."

At the sentencing hearing, consistent with petitioner's strategy, trial counsel argued that petitioner should be granted a lighter sentence because he was engaged in mutual combat during the assault and because, afterwards, petitioner was cooperative with the police. He also argued other mitigating factors, specifically, that petitioner had taken responsibility for his actions, that the harm from his actions was less than would typically be expected from a knife wound, and that petitioner was amenable to treatment.

In support of the strategy, counsel introduced evidence of the probation fitness evaluation. Petitioner's sergeant also testified in support of petitioner's case for probation. He stated that petitioner was a "good soldier," who "excelled above his peers," and who, prior to the assault, was up for a promotion to sergeant. He also testified that petitioner's performance continued to be exemplary even after the assault, and that petitioner had completed the Army Substance Abuse Program (ASAP) and would attend anger management classes. He added that the Army intended to keep petitioner if the resolution of the case allowed.

The state argued that there was no mutual combat and that the military was unlikely to help petitioner turn his life around because he was in the military when the incident happened. In support, the prosecutor stated that, directly before the assault, petitioner and his friends were shouting that the other group should not mess with them because they were "Army rangers." In response, trial counsel showed the court petitioner's enlisted-record brief for the purpose of demonstrating that petitioner was not an Army ranger:

"[TRIAL COUNSEL]: I do have, Judge, his military record that I told the State I was going to allow you to see.

"THE COURT: Is there anything in particular on this that you want me to look at?

"[TRIAL COUNSEL]: He's not a ranger. And when the Court's ready, [petitioner] will want to address.

"THE COURT: Certainly. Is there anything in particular that you want me to—do you just want me to read the entire record or—

"[TRIAL COUNSEL]: No, Judge. I just wanted to present it to you that he's not a ranger.

"THE COURT: Oh, it's just to show that he's not a ranger.

"[TRIAL COUNSEL]: He does have a good conduct medal and things like that."

The enlisted-record brief that counsel handed the court included an "Awards and Decorations" section, which indicated that petitioner had earned 10 different commendations. The awards were described using shorthand and abbreviations, and the...