Vega-Arrieta v. Blewett

• Court: Oregon Court of Appeals
• Writing for the Court: HELLMAN, J.
• Citation: Vega-Arrieta v. Blewett, 331 Or.App. 416, 545 P.3d 746 (Or. App. 2024)
• Docket Number: A174808
• Decision Date: 06 March 2024
• Parties: David Daniel VEGA-ARRIETA, Petitioner-Appellant, v. Tyler BLEWETT, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

545 P.3d 746

331 Or.App. 416

David Daniel VEGA-ARRIETA, Petitioner-Appellant,

v.Tyler BLEWETT, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A174808

Court of Appeals of Oregon.

Argued and Submitted September 15, 2022

March 6, 2024

Umatilla County Circuit Court, 17CV42589; J. Burdette Pratt, Senior Judge.

Margaret V. Huntington argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and Heilman, Judge.

HELLMAN, J.

₄₁₈Petitioner appeals a judgment denying his petition for post-conviction relief from several counts of first-degree sex crimes against a minor. On appeal, he raises four assignments of error. The first alleges that the court erred in denying his motion for substitution of counsel under Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966). The remaining three assignments of error allege that the post-conviction court erred in denying his claims for relief grounded on contentions of inadequate and ineffective trial counsel. We conclude that the comi; did not err in denying relief on those grounds. Accordingly, we affirm.

[1, 2] We review a post-conviction court's judgment on a petition for post-conviction relief for legal error and accept the court’s supported implicit and explicit factual findings. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). At issue in this matter are parallel claims of inadequate and ineffective assistance of trial counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The standards for assessing the performance of counsel under both constitutions are "functionally equivalent." Johnson v. Premo, 361 Or. 688, 699, 399 P.3d 431 (2017). Under Article I, section 11, a petitioner must prove two elements: first, that trial counsel failed to exercise reasonable professional skill and judgment, and second, that the petitioner suffered prejudice from counsel’s inadequacy. Id. Prejudice under the state constitution is demonstrated when a petitioner shows that counsel’s failure had a "tendency to affect the result of his trial." Id. Under the Sixth Amendment, a petitioner must prove that counsel provided constitutionally deficient representation which prejudiced him. Strickland v. Washington, 466 U.S. 668, 694, 104 S Ct 2052, 80 L Ed. 2d 674 (1984). Prejudice under the federal constitution is demonstrated when there is a "reasonable probability that, but for counsel’s [deficiency], the result of the proceeding would have been different." Id. When a post-conviction court has "determined that petitioner failed to prove both elements of an inadequate assistance claim[,]" we will affirm the post-conviction court’s decision unless "the petitioner persuades this court that the post-conviction ₄₁₉court committed reversible er- ror with respect to its rulings as to each element." Austin v. Premo, 280 Or App 481, 486, 380 P.3d 1253, rev. den., 360 Or. 697, 388 P.3d 708 (2016).

The relevant facts are as follows. The criminal proceedings began after R reported to his neighbor, Matsuura, that petitioner had been sexually abusing him. R reported the abuse after Matsuura witnessed R lying face down and humping a hole in the ground between Matsuura and R’s trailer park homes. When Matsuura confronted R about this, R stated that he was doing what he learned from petitioner. After she reported the incident to R’s mother, the police and CARES NW began an investigation in which R reported that petitioner had sexually abused him. During the investigation, the police conducted a forensic analysis of petitioner’s computer and found pornography on it. At the conclusion of the investigation, the state charged petitioner with several counts of first-degree sexual abuse of R.

Petitioner elected to have a bench trial. Counsel’s¹ defense for petitioner was twofold. Counsel first argued that R fabricated the allegations against petitioner because of the compromising situation that Matsuura had caught him in. Counsel also argued that R would have, contracted Herpes Simplex Virus-2 (HSV2), if the allegations of sexual abuse were true, because petitioner was diagnosed with that virus. R’s medical and forensic examination did not show that R had signs or symptoms of HSV2, but he was not formally tested for it.

R testified at the bench trial. R testified that he was ten years old when the abuse began and that it occurred about three times per week over seven months. Regarding Matsuura’s witnessing of R humping the ground, R stated that he did not remember Matsuura finding him on the ground as she testified, but that he told her about the abuse on a separate occasion. The state also introduced R’s CARES video interview and had R’s mother testify to corroborate some of his statements. An investigating officer testified about the forensic search of petitioner’s computer, including a description of the pornography as involving same-sex encounters.

₄₂₀Petitioner’s trial counsel called Matsuura as a witness during the bench trial. Matsuura testified to witnessing R hump the ground with his pants down, and that R was embarrassed and scared. Matsuura testified that R told her that he was being touched or humped by petitioner at home when R’s mother was not around. She further testified that R asked her not to tell his mother about the incident because he was afraid that petitioner would beat him and his mother up. Matsuura reported the abuse to R’s mother about a month later when R was comfortable talking about it with her.

Counsel then called Dr. Fahey to testify in support of the HSV2 theory. Dr. Fahey testified that, based on literature reviews, repetitive sexual contact would make it more likely that someone would transmit HSV2 to someone else, regardless of age. Dr. Fahey opined that, if petitioner had sexually abused R three times a week over seven months, there was a greater than 50 percent chance that R would also have contracted HSV2. On cross-examination, Dr. Fahey admitted that he was only knowledgeable on the risk of HSV2 transmission between adults and that he was not qualified to provide opinions about the risk of HSV2 transmission from adults to children.

During closing argument, petitioner’s counsel argued to the court that R was so embarrassed about being caught with his pants down humping the ground by Matsuura that he fabricated the abuse to deflect attention from his actions. Counsel also attempted to highlight inconsistencies in R’s testimony and conflicts between R’s and Matsuura’s testimonies. Counsel further argued that children could still get HSV2, and that the decision from R’s doctors not to test him for it shed reasonable doubt on petitioner’s guilt.

The trial court, relying on R’s testimony, found petitioner guilty on all counts and sentenced petitioner to 300 months in prison. We affirmed petitioner’s convictions on direct appeal, and the Supreme Court denied review. State v. Vega-Arrieta, 279 Or App 609, 381 P.3d 1049 (2016), rev. den., 360 Or 752, 388 P.3d 727 (2017).

₄₂₁Petitioner then filed for post-conviction relief. In a petition drafted by post-conviction counsel, petitioner claimed that his trial attorneys provided inadequate and ineffective assistance for calling Matsuura as an adverse witness and for failing to properly investigate the HSV2 transmission theory. The petition also made a separate claim of cumulative error. Petitioner’s counseled petition for relief did not include several claims that petitioner wanted his attorney to raise.

Because counsel had not included all the claims that petitioner wanted, petitioner filed a Church motion, which is a mechanism for post-conviction petitioners to "notify the post-conviction court that counsel has failed to raise certain grounds for relief and to ask the court to either replace counsel or instruct counsel to raise those grounds for relief." Bogle v. State of Oregon, 363 Or. 455, 471, 423 P.3d 715 (2018). In his motion, petitioner requested that the post-conviction court order counsel to: (1) attach an affidavit from a qualified expert on infectious diseases to support the contention that trial counsel were ineffective for relying on Dr. Fahey for the HSV2 theory; (2) raise a claim that the testimony from a police detective about a forensic report of petitioner’s computer was inadmissible hearsay; and (3) raise a claim that trial counsel were ineffective for failing to object to the admission of the detective’s testimony about the pornography found on petitioner’s computer, because it prejudiced him by showing a predisposition to sexual attraction to people of the same sex. In a written response to the motions, post-conviction counsel stated: "After reviewing [p]etitioner’s Church claims, pursuant to [Rules of Professional Conduct (RPC)] 3.1, I will not file an Amended Petition to include those claims." The post-conviction court then held a hearing on petitioner’s motion.

At the healing, the court gave counsel an opportunity to explain his decision not to raise the claims petitioner wanted him to. Counsel explained in some detail about why petitioner’s claims lacked merit. In response to petitioner’s request to attach an affidavit from an expert qualified in infectious diseases, counsel stated that he was not able to include such an affidavit because none of the experts he ₄₂₂contacted were willing or able to provide the information petitioner was hoping for. In response to the request to raise the hearsay claim, counsel stated that the testimony was not hearsay because the detective testified about his own observations. Lastly, in response to petitioner’s request to raise the claim that trial counsel should have objected to the testimony from the detective about the pornography on petitioner’s...