Sophanthavong v. Palmateer

• Decision Date: 12 April 2004
• Docket Number: No. 02-35922.,02-35922.
• Citation: 365 F.3d 726
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Somphalavanh SOPHANTHAVONG, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Respondent-Appellee.

365 F.3d 726

Somphalavanh SOPHANTHAVONG, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Respondent-Appellee.

No. 02-35922.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2003.

Filed April 12, 2004.

Barbara L. Creel, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondent-appellee.

Before ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges.

Opinion by Judge Alarcón; Dissent by Judge Ferguson

ALARCÓN, Circuit Judge.

Somphalavanh Sophanthavong appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Sophanthavong contends that the district court erred in denying his claim that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel (1) misrepresented the applicability of Oregon's "Second Look" statute to his sentence; (2) failed to explain that his guilty plea required him to stipulate to a departure sentence greater than the presumptive sentence; and (3) erroneously advised him that he could be convicted of aggravated murder and face a sentence of thirty years.

We affirm because Mr. Sophanthavong has failed to prove that the state court's decision was contrary to or an unreasonable application of federal law, or based on an unreasonable determination of the facts in light of the evidence presented.

I

On August 1, 1994, at the age of sixteen, Mr. Sophanthavong participated in a burglary and robbery. During the burglary and robbery, the victim was killed. The State charged Mr. Sophanthavong with aggravated murder, murder, first-degree robbery, and first-degree burglary. The State filed a motion requesting that the juvenile court waive jurisdiction over Mr. Sophanthavong and transfer him to the state circuit court to stand trial as an adult.

At the outset of the juvenile court hearing, Mr. Sophanthavong's counsel made the following judicial admission:

my client is of sufficient sophistication and maturity to appreciate the conduct of his behavior. I don't think the Court's going to hear anything from any of the people that actually know Mr. Sophanthavong his court counselor, Pati Archuleta, and Dr. Orin Bolstad, who did an evaluation in this case — that there's anything to suggest otherwise.

In fact, what the Court will hear from Dr. Bolstad is that we have an individual who's of average intelligence, who has no major psychological issues that will impair treatment, or certainly suggest that he lacks the sufficient maturity and sophistication.

The Oregon statute in force at the time of the juvenile court hearing set forth four factors to consider in waiving a youth to an adult court:

(1) The youth is 15 years of age or older at the time of the commission of the alleged offense;

(2) The youth, except as otherwise provided in ORS 491C.364 and 419 C.370, is alleged to have committed a criminal offense constituting:

(a) Murder under ORS 163.115 or any aggravated form thereof;

. . .

(3) The youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved; and

(4) The juvenile court, after considering the following criteria, determines by a preponderance of the evidence that retaining jurisdiction will not serve the best interests of the youth and of society and therefore is not justified:

(a) The amenability of the youth to treatment and rehabilitation given the techniques, facilities and personnel for rehabilitation available to the juvenile court and to the criminal court which would have jurisdiction after transfer;

(b) The protection required by the community, given the seriousness of the offense alleged;

(c) The aggressive, violent, premeditated or willful manner in which the offense was alleged to have been committed;

(d) The previous history of the youth, including:

(A) Prior treatment efforts and out-of-home placements; and

(B) The physical, emotional and mental health of the youth;

(e) The youth's prior record of acts which would be crimes if committed by an adult;

(f) The gravity of the loss, damage or injury caused or attempted during the offense;

(g) The prosecutive merit of the case against the youth; and

(h) The desirability of disposing of all cases in one trial if there were adult cooffenders.

Or.Rev.Stat. § 419C.349 (2001).

During the evidentiary hearing, the court heard the testimony of James Bridges, the assistant principal at David Douglas High School. Mr. Bridges testified that Mr. Sophanthavong was one of his students. Mr. Bridges stated that Mr. Sophanthavong "was an honor roll student his freshman year, 3.5 GPA, which is a B-plus average."

In his junior year, however, because of "strings of absenteeism," his grades plummeted. Ultimately, he withdrew from the school. Mr. Bridges referred Mr. Sophanthavong to an alternative high school because of his numerous absences and behavior problems. In the referral letter, Mr. Bridges described him as a "very bright young man who needs a new direction." On cross-examination, Mr. Bridges testified that Mr. Sophanthavong "has the intellectual skills to be able to exist in a structured educational environment."

After the close of evidence, Mr. Sophanthavong's counsel stated: "Sophistication and maturity. The Court heard the evidence. I'm not going to argue that point." Instead, defense counsel argued that the State failed to meet its burden of proving, as required under the fourth factor set forth in ORS § 419C.349 (2001), that retaining juvenile court jurisdiction was not in the best interest of his client. The juvenile court granted the State's motion to waive juvenile court jurisdiction.

Mr. Sophanthavong appealed the order of the juvenile court granting the State's motion to waive juvenile court jurisdiction. The only issue raised in the appeal was whether the juvenile court erred in finding that it was in the best interest of the child and society that the juvenile court waive its jurisdiction and transfer the child to the adult criminal court. Mr. Sophanthavong's brief noted that "in this case the child did not dispute that the first three elements of Or.Rev.Stat. § 419C.349 were met."

The Court of Appeals of the State of Oregon affirmed the juvenile court's order without opinion. The Supreme Court of the State of Oregon denied Mr. Sophanthavong's petition for review without opinion.

Mr. Sophanthavong was indicted on December 19, 1994 as an adult and charged with aggravated murder, two counts of felony murder, intentional murder, robbery in the first degree, and burglary in the first degree.

At the time Mr. Sophanthavong was indicted, Oregon's Felony Sentencing Guidelines prescribed a presumptive sentence of 120 to 121 months and a maximum sentence of 242 months for felony murder. Aggravated murder was a capital offense, but because Mr. Sophanthavong was a minor, the prescribed sentence for a conviction of aggravated murder was life imprisonment with a minimum sentence of thirty years.

Mr. Sophanthavong entered into an agreement with the District Attorney's Office of Multnomah County, Oregon to plead guilty to felony murder on the condition that the sentence would be 180 months. He was represented by Gary B. Bertoni. Mr. Sophanthavong also agreed to testify against his co-defendants in exchange for a dismissal of the five remaining charges. Mr. Sophanthavong personally signed the agreement, and submitted a petition to plead guilty to the circuit court.

A change of plea hearing was originally set for June 21, 1995. It was rescheduled for the following week to give Mr. Sophanthavong more time to consider his plea. On June 29, 1995, Mr. Sophanthavong appeared in court to enter his plea of guilty. When the court asked Mr. Sophanthavong if the plea was made voluntarily and if anyone forced him to plead guilty, Mr. Sophanthavong replied, "No, it was made voluntarily, sir." The court then stated, "You know you don't have to do it. You know you can go to trial?" Mr. Sophanthavong responded, "Yes."

Thereafter, the court advised Mr. Sophanthavong of the constitutional rights he would be giving up by pleading guilty. The court stated:

You give up a trial with a jury of twelve people, or a trial with a judge. You can give up a right to a jury trial and have the judge try the case if he or she wishes. You give up the right to cross-examine. That means ask questions of all the witnesses called by the state, police officers, doctors, anybody.

You give up the right to call witnesses of your own, subpoena them, require them to come in and testify, and you give up the right to testify yourself. You don't have to testify at a trial, and if you don't, it won't be held against you.

Now, if there is a trial, and the judge or the attorneys make a mistake, you have the right to appeal. No trial, no mistakes, so you basically give up the right to appeal everything except that the sentence is too harsh or it's an illegal sentence, beyond the power of the Court, something like that. You can still appeal that.

The court further advised Mr. Sophanthavong regarding duties under the plea agreement:

Let's assume that the other individuals who have been indicted or in the process of being indicted, I don't know on this, come to trial and you say, "I am not going to testify." In that case, the State can bring up all of the other charges again against you.... In other words, what you're doing is giving up what we call double jeopardy right, but you are giving up the right to say, "You already tried me on those cases."

When asked if he had any questions about the constitutional rights he would be waiving, Mr. Sophanthavong responded, "No."

Later in the hearing, Mr. Sophanthavong's trial counsel advised the court:

With respect to the voluntariness of this plea, it is a matter that he has spent many hours dealing with to the

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