Real v. Nooth

• Decision Date: 04 February 2015
• Docket Number: 12039302P,A153065.
• Citation: 268 Or.App. 747,344 P.3d 33
• Parties: German Reyes REAL, Petitioner–Respondent, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Appellant.
• Court: Oregon Court of Appeals

268 Or.App. 747

344 P.3d 33

German Reyes REAL, Petitioner–Respondent

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Appellant.

12039302P

A153065.

Court of Appeals of Oregon.

Argued and Submitted Sept. 9, 2014.

Decided Feb. 4, 2015.

Leigh A. Salmon, Senior Assistant Attorney General, argued the cause for appellant. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Clayton Lance, Lake Oswego, argued the cause for respondent. On the brief was Larry R. Roloff.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

SERCOMBE, P.J.

In this collateral criminal proceeding, the post-conviction court concluded that petitioner was denied adequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution because petitioner's trial counsel did not argue that a 20–year sentence of imprisonment for petitioner's convictions of attempted aggravated murder and attempted assault was disproportionate under Article I, section 16, of the Oregon Constitution.¹ Defendant—the Superintendent of Snake River Correctional Institution (superintendent)—appeals, arguing that the performance of petitioner's trial counsel was not prejudicially deficient. We conclude that petitioner suffered no prejudice from the asserted deficiency of his trial counsel because, even if trial counsel had made the disproportionality challenge that petitioner contends should have been made, and even if that challenge had been evaluated under analysis like that applied in State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009), the challenge would have failed. Accordingly, we reverse.

The underlying facts are as follows. Petitioner, along with other members of a gang, was in a car that pursued another car that they believed carried members of a rival gang. Petitioner testified in the criminal trial that, while the cars were in motion, he believed he saw that one of the occupants of the other car had a gun. When the rival car came to a stop, petitioner did not tell the driver of his car to continue driving, nor did he object when one of his companions told their driver to cut the other car off. Instead, once their car came to a stop, petitioner, using a semiautomatic rifle at close range, opened fire on the other car. He fired seven shots, which passed through the front window of the victims' car. There were six people in that car: two in the front seat and four in the backseat. One of the backseat passengers may have been nicked in the arm by a bullet; otherwise, petitioner's bullets inflicted no injuries.

Petitioner was charged with six counts of attempted aggravated murder, one count for each victim.² A jury convicted him of attempted aggravated murder as to two of the victims in the backseat and of the lesser-included offense of attempted third-degree assault as to the other four victims. For each of the two attempted aggravated murder convictions, the trial court imposed the 120–month term of incarceration required by ORS 137.700(2)(a)(B), one of the mandatory minimum sentences adopted by Ballot Measure 11 (1994), and ordered those terms to run consecutively. The court also imposed a one-year imprisonment sentence on each count of attempted assault, to run concurrently with the sentences on the attempted aggravated murder convictions. On direct appeal, we affirmed without opinion. State v. Reyes–Real, 244 Or.App. 137, 257 P.3d 1021 (2011).

Petitioner then initiated this post-conviction relief proceeding. Petitioner asserted that his trial counsel's performance had been prejudicially deficient in two particulars, namely that counsel had failed to raise two challenges that would have been successful. First, he claimed that his trial counsel performed inadequately by not asserting, as a basis for a motion for judgment of acquittal (MJOA), that the state had produced no evidence that would have allowed the jury to conclude that he possessed the specific mental intent for attempted aggravated murder. He argued that “[d]efendant's intent[,] or lack thereof, would have to be the same for all the occupants of the vehicle unless there were specific examples in the record from which the jury could conclude the Defendant had singled out the particular individuals in the front and back seat with specific intent to kill each of them.” In particular, petitioner contended that no reasonable juror could conclude that “the evidence in the case exhibited a[n] individualized and specific intent by the Defendant [in relation to] the two (2) individuals in the back seat for which he was convicted.”

Second, he claimed that his trial counsel performed inadequately by failing to object to “the criminal penalty of twenty (20) years in prison” as disproportionate under the Supreme Court's disproportionality analysis in Rodriguez/Buck, In particular, petitioner contended that his trial counsel should have argued that it “would shock the moral sense of reasonable people * * * that the exact same conduct resulted in two huge and highly divergent sentences * * *.” Petitioner contended that, in an as-applied disproportionality analysis, a court “should consider the facts of an individual's specific conduct rather than the nature of the crime and conviction thereof.” Here, in petitioner's view, his “conduct” was “the firing of the rifle” and that same conduct resulted in convictions for both attempted third-degree assault and attempted aggravated murder—a result that, he contended, is constitutionally disproportionate. Petitioner argued, “The penalty for these [attempted aggravated murder] convictions creates a disparity of ten (10) times that of the other [attempted assault convictions] as it relates to each count of conviction.” Petitioner contended that, given the other aspects and circumstances of petitioner's conduct—which he described as firing a rifle without aiming at particular individuals, believing his life was in danger, thinking that his victims were armed, and not causing any injury—and his lack of criminal history, his sentence for the attempted aggravated murder convictions was constitutionally disproportionate.

The post-conviction court denied relief on the MJOA claim but granted relief on the disproportionality claim, based on these findings and conclusions:

“1. The jury verdict in this case is totally inexplicable.

“2. J[udgment] of a[cquittal] at close of state's case would not have been granted. 7 shots at close range into the windshield of a car w/ 6 people is enough in the light most favorable to the state.

“3. Jury found diff[erent] v[ictim]s on 2 cases [counts?] w/ consec[utive] sent[ences], so no need for other findings.

“4. No one was injured, but that was pure luck. Just as easily, 6 people could have died.

“5. Rodriguez/Buck was decided after this trial and was a change in the prior interpretations of M[easure] 11. But the Oregon and federal constitutions were still relevant to sentences. In general, reasonable people would not be shocked at 120 mo[nth sentences] for the conduct, but would be shocked that 2 c[ount]s could carry a M[easure] 11 sentence and 4 could carry only a misd[emeanor] sentence. Trial att[orney] did not cite any constitutional provisions so that issue was not preserved. Due to the verdict, this argument became especially important. It was inadequate not to raise it and it also meant it could not be appealed. The pet[ititoner] was prejudiced.”

That is, the post-conviction court concluded that an MJOA based on lack of evidence that petitioner acted with the requisite intent for aggravated murder—i.e., the intent to kill more than one person—would have failed. Because there was enough evidence to go to the jury on all six attempted aggravated murder counts, an MJOA on that basis would have failed, and, accordingly, petitioner suffered no prejudice from his trial counsel's failure to make such a motion.³ On the other hand, the post-conviction court concluded that petitioner's trial counsel was deficient in failing to raise a constitutional disproportionality challenge to petitioner's sentence and that that failure prejudiced petitioner. As to prejudice, the post-conviction court reasoned that a disproportionality challenge would have prevailed because, although “reasonable people would not be shocked at 120 mo [nth sentences] for the conduct, [they] would be shocked that 2 c[ount]s could carry a M[easure] 11 sentence and 4 could carry only a misd[emeanor] sentence.”

We disagree with the post-conviction court because, even if it was deficient for petitioner's trial counsel not to raise a constitutional disproportionality challenge,⁴ petitioner did not suffer prejudice as a result. Petitioner asserts that trial counsel should have raised an argument based on analysis similar to that announced by the Supreme Court in Rodriguez/Buck. However, as we will explain, even if trial counsel had made a disproportionality challenge and a court had evaluated it under the Rodriguez/Buck analysis, the challenge would have failed. Given that such a challenge would have failed, there is no likelihood that raising it would have affected the result, and petitioner suffered no prejudice from the lack of a disproportionality challenge.

To prevail on a post-conviction claim of inadequate assistance of trial counsel under Article I, section 11, a petitioner has the burden of showing, by a preponderance of the evidence, (1) deficient performance (i.e., that trial counsel failed to exercise reasonable professional skill and judgment based on the law at the time trial counsel acted) that resulted in (2) prejudice to the petitioner (i.e., that trial counsel's deficient performance had a tendency to affect the result of the petitioner's prosecution). Chase v. Blacketter, 221 Or.App. 92, 96, 188 P.3d 427, rev. den., 345 Or. 381, 195 P.3d 911 (2008). Under the Sixth Amendment, a petitioner must make a...