Snyder v. Amsberry

• Jurisdiction: Oregon
• Parties: Dennis Joshua SNYDER, Petitioner-Appellant, v. Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
• Citation: 306 Or.App. 439,474 P.3d 417
• Docket Number: A166355
• Court: Oregon Court of Appeals
• Decision Date: 10 September 2020

306 Or.App. 439

474 P.3d 417

Dennis Joshua SNYDER, Petitioner-Appellant,

v.Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

A166355

Court of Appeals of Oregon.

Argued and submitted May 6, 2019.

September 10, 2020

Jason Weber argued the cause for appellant.Also on the brief was O'Connor Weber LLC.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent.Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

JAMES, J.

Petitioner appeals the post-conviction court's grant of summary judgment in favor of the superintendent on his petition for post-conviction relief in which he alleged that trial counsel was ineffective and inadequate in failing to investigate petitioner's mental health history before advising petitioner to enter a plea of guilty.Without holding a hearing, the post-conviction court granted summary judgment in favor of the superintendent, on a variety of grounds.Petitioner advances three arguments on appeal—first, that the post-conviction court improperly granted summary judgment on the merits; second, that the court erred when it dismissed petitioner's claim without holding a hearing; and third, that any dismissal should have been without prejudice.On petitioner's second point, the superintendent argues that such an argument is unpreserved, and that this court should decline to consider it as plain error.We agree with petitioner on his second point—that the post-conviction court erred in failing to hold a hearing before entering the judgment in this matter—and we conclude that the manner in which the error arose eliminated the need for a contemporaneous objection to preserve the issue for appellate review.We reverse and remand.Our disposition on the second assignment of error largely obviates the need to address the remaining arguments.However, we address one aspect of petitioner's first assignment of error that is likely to arise on remand: We conclude that the post-conviction court misconstrued the applicable legal standard for assessing prejudice for the portion of petitioner's claim that asserts that counsel was ineffective in failing to alert the trial court of counsel's concern that petitioner was unable to aid and assist in his defense.

"When a party seeks summary judgment, a court must view the pleadings, as well as any ‘depositions, affidavits, declarations and admissions’ that the parties have submitted in support of or in opposition to the summary judgment motion, in the light most favorable to the non-moving party."Eklof v. Steward , 360 Or. 717, 729, 385 P.3d 1074(2016)(quotingORCP 47 C).Whether the post-conviction court may dismiss a petition for post-conviction relief with prejudice without holding a hearing where the petitioner is present is a question of law.SeeHowell v. Franke , 258 Or. App. 202, 203, 308 P.3d 1078(2013)(applying that standard).

As petitioner alleged in his amended petition for post-conviction relief, he pled guilty to assault in the second degree, despite "[t]rial counsel[being] aware that at the time of the incident that petitioner was not taking his medications."Before trial, "[t]rial counsel had concerns about the petitioner's ability to aid and assist" and told petitioner that "he would be evaluated by a mental health professional.No mental health evaluation was ever performed."Instead, trial counsel wrote an email to the prosecutor of the case to inform him of his concerns about petitioner's ability to aid and assist in his own defense.The email, attached in support of petitioner's opposition to summary judgment, provided, in part:

"[Petitioner] is [in] a difficult situation, at times I wonder if he can aid and assist .I recently got juvenile records from when [petitioner] was 5-10 years old indicating that his mother was developmentally disabled and his father was a sex offender and that he had a whole host of mental problems which you can imagine.As a result their parental rights were terminated and he was adopted by a family in Ohio when [petitioner] was ten years old.

"* * * * *

"I think he has a mental defense but I need, more time to develop it.He may not want to continue the trial date.Give me an offer and I will share it with him tomorrow and we can see if he wants to continue the trial date or accept the offer."

(Emphasis added.)

After receiving trial counsel's email, the state offered to dismiss Count 2, unlawful use of a weapon, if petitioner would plead guilty to Count 1.Without having petitioner examined for his ability to aid and assist, counsel presented the offer to petitioner.Petitioner accepted the plea offer, and defense counsel facilitated the entry of the guilty plea.At petitioner's plea hearing, trial counsel informed the court that petitioner had "a long history" of mental illness but, according to petitioner, did not alert the court to the aid and assist concerns expressed to the prosecutor.

In his petition for post-conviction relief, petitioner alleged that trial counsel was inadequate and ineffective in violation of Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution for failing to investigate his mental health.That failure to investigate claim, according to the petition, resulted in two distinct harms.First, petitioner alleged that the failure to investigate resulted in trial counsel failing to develop a mental health defense.Specifically, petitioner alleged:

• Trial counsel was aware of petitioner's mental health history and other than reviewing some of petitioner's past records, never took any steps to develop a mental health defense.

• Trial counsel did not conduct any investigation into petitioner's mental health history and how that could have mitigated or explained petitioner's conduct.

• Trial counsel recognized that petitioner had a mental health defense to the charges, but never discussed this defense with petitioner.

• Competent counsel exercising reasonable professional skill and judgment would have investigated petitioner's mental health history to determine if that was a factor in petitioner's charged conduct.

However, as alleged in the petition, the failure to investigate petitioner's mental health also went to the issue of whether trial counsel was ineffective or inadequate in failing to inform the trial court of concerns that petitioner might be unable to aid and assist in his defense.Specifically, the petition alleged:

• Petitioner told trial counsel that he had a long history of mental health illness.

• Trial counsel was aware that at the time of the incident, petitioner had not been taking his medications.

• Petitioner requested trial counsel investigate his mental health history.Petitioner was told that he would be evaluated by a mental health professional.No mental health evaluation was ever performed.

• Trial counsel had concerns about petitioner's ability to aid and assist.Despite these concerns, trial counsel never had petitioner evaluated or brought his concerns to the court's attention.

• At a minimum, a mental health evaluation should have been conducted to ensure petitioner could aid and assist prior to entering a plea.

The superintendent moved for summary judgment, focusing attention on the portion of petitioner's claim related to a mental health defense, arguing that in the absence of any evidence that petitioner asserted trial counsel should have obtained, petitioner could raise no genuine issue of fact as to whether an adequate investigation of petitioner's mental health would have yielded results changing petitioner's decision to plead guilty.The superintendent urged that "[i]f the non-moving party cannot attach admissible evidence in the manner prescribed by ORCP 47D, the Court must grant the motion for summary judgment."Petitioner responded that summary judgment should be denied because he will testify to his mental health history and what trial counsel was told about his mental health issues.

The post-conviction court agreed with the superintendent that petitioner's claims required proof of the substance of a mental health evaluation that petitioner alleges trial counsel should have conducted.The court's decision discussed its reasons for granting the superintendent's motion for summary judgment.Those reasons included:

"[There was] no allegation that the plea was not knowing, not voluntary and or not intelligent, asserted in the amended petition or supported in the response to the MSJ.

"A petitioner who claims that their trial lawyers did not adequately advise them of the consequences of pleading guilty must ‘prove by a preponderance of the evidence that they would not have pleaded guilty had they received adequate assistance of counsel.’This is not even pled by petitioner nor supported in the asserted testimony by him or trial counsel.In lieu of an affidavit of an expert, the responding attorney may submit an affidavit to the effect ‘that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact * * *.’Clearly, petitioner and petitioner's counsel have not provided this simple substitute for actual support from an expert witness.

"* * * * * "A court could not make a determination of mental illness that would have affected the plea without an expert witness now."

(Internal citations omitted; emphases omitted.)

Post-conviction cases are civil actions of statutory origin.The Oregon Rules of Civil Procedure apply in post-conviction cases, unless the post-conviction statutes provide otherwise.Young v. Hill , 347 Or. 165, 171, 218 P.3d 125(2009)(citingMueller v. Benning , 314 Or. 615, 621 n. 6, 841 P.2d 640(1992) ).As a general matter, in considering motions for summary judgment, a court may decide the matter without a hearing, unless...