Rudnitskyy v. State

• Citation: 464 P.3d 471,303 Or.App. 549
• Decision Date: 15 April 2020
• Docket Number: A165073
• Parties: Petr Vasilyevich RUDNITSKYY, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
• Court: Court of Appeals of Oregon

303 Or.App. 549

464 P.3d 471

Petr Vasilyevich RUDNITSKYY, Petitioner-Appellant,

v.STATE of Oregon, Defendant-Respondent.

A165073

Court of Appeals of Oregon.

Argued and submitted October 30, 2018.

April 15, 2020

Brian P. Conry argued the cause and filed the briefs for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Brewer, Senior Judge.

DeHOOG, P. J.

Petitioner appeals a judgment denying him post-conviction relief based upon the performance of his criminal defense attorney. In the underlying prosecution, a jury found petitioner guilty of unlawful possession of heroin, ORS 475.854,¹ after hearing, in addition to other evidence, an officer testify that petitioner had acknowledged smoking heroin two months before the charged incident. On appeal of the post-conviction court's ruling, petitioner argues that he received constitutionally inadequate and ineffective assistance of counsel when his attorney (1) volunteered during his opening statement that petitioner had made that admission; (2) failed to object under OEC 403 when the officer testified to the admission; and (3) failed to take corrective action when the prosecution relied on petitioner's admission to support a propensity-based closing argument. Petitioner further argues that counsel's acts and omissions, both independently and cumulatively, caused him prejudice, and that the post-conviction court employed the wrong prejudice standard when ruling otherwise. The state responds that trial counsel's performance was not constitutionally defective, because (1) counsel reasonably chose to acknowledge petitioner's admission before the state brought it up; (2) an OEC 403 objection to that evidence would have been unsuccessful; and (3) the state did not argue a propensity theory in closing. The state alternatively argues that, even if trial counsel performed deficiently, that performance did not prejudice petitioner. For the reasons that follow, we conclude that petitioner has not established that the post-conviction court erred in denying him relief. Accordingly, we affirm.

"We review the grant or denial of post-conviction relief for legal error." Waldorf v. Premo , 301 Or. App. 572, 573, 457 P.3d 298 (2019). In doing so, "[w]e accept the post-conviction court's express and implicit findings of fact if there is evidence in the record to support them." Id. We will not, however, find that a post-conviction court made any implicit findings that are inconsistent with, or unnecessary to, the court's ultimate conclusion.

Pereida-Alba v. Coursey , 356 Or. 654, 670-71, 342 P.3d 70 (2015). We state the facts accordingly.

Petitioner's underlying charge arose from an incident in which a witness had reported seeing a suspected drug deal in a restaurant parking lot. The responding officer, Schoenfeld, arrived within a minute of being dispatched. Schoenfeld found the car that the caller had identified parked in the corner of the lot. A man was leaning on the open driver-side window, and two men, petitioner and a passenger, were seated in the driver's and front passenger's seats. Both petitioner and his passenger were holding straws and cigarette lighters. Schoenfeld subsequently found both a large roll and small pieces of aluminum foil in petitioner's car. According to Schoenfeld, those items were likely used to smoke heroin through a method called "chasing the dragon." There was no indication, however, that petitioner was under the influence of heroin.

After advising petitioner of his Miranda rights, Schoenfeld told him that a witness had seen him engaging in a drug deal and asked petitioner for his side of the story. Petitioner responded that, although the drug purchase had been made through the driver-side window, the purchase had been for his friend, who had been seated in the passenger seat. Petitioner explained that he had given another person 20 dollars for the heroin, which he immediately handed to his friend, who was sick from heroin withdrawal. In Schoenfeld's view, petitioner's friend was uncooperative and "odd," but he was not exhibiting behavior consistent with heroin withdrawal. Schoenfeld then asked petitioner when he had last smoked heroin, and petitioner told him that "he had not used heroin in over two months, as he had taken a trip to the Ukraine recently."

Following the arrest of petitioner and his passenger, the responding officers later found an amount of heroin in petitioner's car that was small, even for personal-use purposes, and petitioner's passenger subsequently left evidence in a patrol car that indicated that he had smoked at least some of the heroin that had been purchased. Nonetheless, a grand jury ultimately indicted petitioner for unlawful possession of heroin, ORS 475.854.

At petitioner's ensuing trial, his attorney stated in opening that "[petitioner] * * * is going to tell you that he hadn't done heroin in a number of months. He wasn't using heroin and he was staying off of it." Counsel explained that, even though petitioner had been able to stay clean, his friend had not been. Consistent with petitioner's statement to Schoenfeld, counsel acknowledged that petitioner had purchased the heroin, but said that he had done so with his friend's money and had handed the heroin to him so that he would not be sick. Counsel told the jury that, as a result, petitioner could not be found guilty of unlawfully possessing heroin, because he had never exercised actual control over the heroin, nor had he had the right to dominion or control over it.²

Despite having candidly acknowledged petitioner's historical drug use during opening statements, defense counsel later objected when Schoenfeld testified about petitioner's admission to him.

"[Prosecutor:] This is very important so I want to go through this. [Petitioner] told you he took the heroin from the drug dealer, held it in his hand, and then passed it on to [his passenger]?

"[Schoenfeld:] Yes.

"[Prosecutor:] Go ahead.

"[Schoenfeld:] I asked him when he had last used heroin, and he told me that he had not used heroin—

"[Trial Counsel:] Objection. Relevance.

"THE COURT: Overruled. Go ahead.

"[Schoenfeld:] I asked [petitioner] when he had last used heroin, and he told me that he had not used heroin in over two months, as he had taken a trip to the Ukraine recently."

Ultimately, petitioner did not testify, and defense counsel did not otherwise address petitioner's admissions or present any other evidence. However, petitioner's admission of past heroin use came up a third time during the prosecution's closing argument.

"And I will leave you with one last analogy. That is, [say] today [we were] talking about alcohol instead of heroin. And you can use your reason and common sense to make inferences, so let's talk about those. Based on your common life experience you can kind of put two and two together[.] * * * Let's say there is someone who used to drink alcohol. Goes back to Russia, says he went back to Russia and doesn't drink anymore. In fact, [his choice of drink is a] martini. * * * He says he gives it up. It was so bad he had to go to Europe to do it.

"What did he say? He said, I haven't used heroin for two months. * * * Let's think about that with our alcohol example. The defendant takes him to a liquor store, goes and buys the vodka and hands it over to him, they pull to a spot and are about to drink it, and he's holding the martini shaker and a martini glass in his hand, and you walk up, and you see him shove it under his legs. The response to that is, that is ridiculous. You're about to have a drink there. The two of you bought that to drink together."

The jury unanimously voted to convict petitioner. Following an unsuccessful appeal on other grounds, State v. Rudnitskyy , 266 Or. App. 560, 338 P.3d 742 (2014), rev. den. , 357 Or. 112, 346 P.3d 1213 (2015), petitioner sought post-conviction relief, alleging inadequate and ineffective assistance of trial counsel. In a letter opinion, the post-conviction court denied petitioner relief, concluding that "[p]etitioner's trial attorney initiated the evidence at trial of [p]etitioner's ‘prior bad acts’ [i.e. , petitioner's admitted use of heroin months before the charged incident] but, even if improper, there was sufficient evidence in the record for the jury to find [p]etitioner guilty without such evidence."³ Petitioner now appeals the post-conviction court's resulting judgment.

On appeal, petitioner argues that (1) post-conviction relief is warranted because trial counsel's performance was constitutionally deficient under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution; and (2) the post-conviction court applied the wrong legal standard in assessing whether counsel's allegedly deficient performance had prejudiced petitioner. Petitioner argues that counsel's prejudicial acknowledgment of his prior drug use during opening statement cannot be viewed as a reasonable tactical decision warranting deference, because it offered no benefit to petitioner, because the admissibility of that evidence was not inevitable, and because, in any event, counsel later failed to further any such strategic objective at trial. Petitioner further argues that, even if such a decision could have been a tactical choice, the state's assertion that it was a tactical choice here nonetheless fails because there is no evidence to support the contention that trial counsel's decision to acknowledge petitioner's prior drug use was a tactical one.

Separately, but relatedly, petitioner identifies two other instances in which trial counsel allegedly failed to act with the requisite degree of professional skill and judgment. First, he argues that trial counsel's performance was deficient when he objected to Schoenfeld's testimony on relevance...