Walls v. Fhuere

• Docket Number: A180261
• Decision Date: 24 July 2024
• Citation: 555 P.3d 354,334 Or.App. 1
• Parties: Tracy Scott WALLS, Petitioner-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

555 P.3d 354

334 Or.App. 1

Tracy Scott WALLS, Petitioner-Appellant,

v.Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A180261

Court of Appeals of Oregon.

Submitted June 14, 2024

July 24, 2024

Marion County Circuit Court, 20CV22814;Patricia A. Sullivan, Senior Judge.

Jedediah Peterson and O’Connor Weber LLC filed the briefs for appellant.Tracy Scott Walls filed a supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins, Judge.

EGAN, J.

₃Petitioner appeals a judgment denying his petition for post-conviction relief from convictions for one count of compelling prostitution and one count of promoting prostitution, which were entered after he pleaded no contest to those crimes.On appeal, he asserts two assignments of error through counsel and five pro se assignments of error.

[1]Accepting the post-conviction court’s supported implicit and explicit factual findings and reviewing for legal error, Green v. Franke, 357 Or. 301, 312, 350 P.3d 188(2015), we affirm.

First Counseled Assignment of Error.In the first assignment of error that petitioner raises through counsel, he asserts that "the post-conviction court erred when it denied relief on petitioner’s first claim, prosecutorial misconduct."

Petitioner’s plea agreement provided, among other points, "OK to return phones to [petitioner’s]sister."Petitioner contends that he had two cellphones; that the state returned only one of them after petitioner’s plea; that the state destroyed the other; that, therefore, the state breached the plea agreement provision stating "OK to return phones to [petitioner’s]sister"; and that he is entitled to post-conviction relief on that basis.The post-conviction court denied relief on that claim.

[2, 3]We conclude that the post-conviction did not err in doing so."The Due Process Clause of the Fourteenth Amendment to the United States Constitution gives [a]defendant an enforceable right in the benefit of his bargain" with the government.State v. Lynch,305 Or App 122, 126, 469 P.3d 800(2020).Thus, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled."Id.(internal quotation marks omitted);see alsoPuckett v. United States,556 U.S. 129, 137, 129 S Ct 1423, 173 L Ed 2d 266(2009)(When "a defendant agrees to a plea bargain, the Government takes on certain obligations," and if they are not met, "the defendant is entitled to seek a remedy.").

[4]₄But "a criminal defendant’s due process right to enforce a plea agreement extends only to enforcement of material terms."Lynch,305 Or App at 127, 469 P.3d 800;see, e.g., Campbell v. Smith,770 F.3d 540, 546(7th Cir2014)("[A]prosecutor’s breach of a plea agreement can be actionable.However, if the breach is insubstantial, immaterial, technical, or cured, then the defendant is entitled to no relief."(Citation omitted.)).¹

[5, 6]"Principles of contract law generally inform the determination of whether a plea agreement has been performed."State v. King,361 Or. 646, 648, 398 P.3d 336(2017).Under those principles, although we are mindful that terms "that are material to one kind of contract are not necessarily material to another kind of contract," generally speaking, "a breach is material if it goes to the very substance of the contract and defeats the object of the parties entering into the contract."²Pistol Resources, LLC v. McNeely,312 Or App 627, 637, 496 P.3d 28(2021)(internal quotation marks omitted).In evaluating materiality, we have considered the circumstances set forth in the Restatement (Second) of Contractssection 241.Pistol Resources,312 Or App at 638, 496 P.3d 28;see alsoVenture Properties, Inc. v. Parker,223 Or App 321, 353-54, ₅195 P.3d 470(2008)(noting the Restatement"criteria" as the criteria under which we"assess" materiality).

The Restatementsection 241 provides:

"In determining whether a failure to render or offer performance is material, the following circumstances are significant:

"(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

"(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

"(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

"(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

"(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing."

Restatement§ 241.

[7] In this case, petitioner entered into a plea agreement with the state under which he would plead no contest to one count of compelling prostitution and one count of promoting prostitution and, in exchange, the state would dismiss 51 other charges.Those other charges included 11 counts of compelling prostitution, one count of promoting prostitution, four counts of attempted promoting prostitution, five counts of first-degree rape, five counts of second-degree rape, five counts of first-degree sodomy, five counts of second-degree sodomy, five counts of delivering methamphetamine to a minor, eight counts of first-degree sexual abuse, one count of first-degree child neglect, and one count of felon in possession of a firearm.Petitioner ultimately received a sentence of 120 months’ incarceration for the two counts to which he pleaded no contest, which was the sentence that the state had requested of the trial judge under the terms of the plea agreement.

According to petitioner’s trial counsel, in negotiating the plea agreement, the amount of "time in prison"₆was petitioner’s "primary concern."In contrast, the return of petitioner’s cellphones was not "an essential part of the negotiation" and was "tacked on later in the process."

Further, there was evidence in the record at the post-conviction hearing, which the post-conviction court expressly found credible, that would have allowed the post-conviction court to find that, when petitioner pleaded no contest to one count of compelling prostitution and one count of promoting prostitution, he was aware that "only one phone was still operational" and that the other phone "had been dismantled and was not repairable as part of a search warrant."The evidence also would have allowed the postconviction court to find that petitioner was aware that the phone that had been destroyed by the state contained "graphic images of minors" and that the state would not t urn over the entirety of the electronic data from the phone to petitioner.Finally, the evidence in the record would have allowed the post-conviction court to find that the state has offered to turn over "contacts, photos, etc.," from the destroyed phone (apart from the aforementioned "graphic images of minors"), as well as reimburse petitioner for the cost of the phone that was destroyed.

Considering the factors set forth in the Restatement and the facts of this case— including that petitioner was aware that one phone had been destroyed at the time that he pleaded guilty; that the state offered to provide petitioner access to the portion of data from the destroyed phone which it is not illegal to possess; that the state offered to compensate petitioner for the cost of the destroyed phone; and that the amount of "time in prison" was petitioner’s "primary concern" in negotiating the plea agreement— we conclude that any breach by the state was not material.Any breach did not go "to the very substance of the contract and defeat[ ] the object of the parties entering into the contract."Pistol Resources,312 Or App at 637, 496 P.3d 28.

[8]Second Counseled Assignment of Error.In the second assignment of error that petitioner raises through counsel, he asserts that "the post-conviction court erred when it denied relief on petitioner’s fourth claim, ineffective assistance of trial counsel."Specifically, petitioner contends that ₇trial counsel was "ineffective and inadequate for failing to advise petitioner that the jury would have to reach a unanimous verdict and, if it did not, petitioner could challenge the constitutionality of the conviction on direct appeal."

Petitioner’s argument is foreclosed by Smith v. Kelly,318 Or App 567, 508 P.3d 77(2022), rev. den.,370 Or. 822, 525 P.3d 860(2023)(counsel was not constitutionally deficient for failing to advise his client that Apodaca v. Oregon,406 U.S. 404, 92 S Ct 1628, 32 L Ed 2d 184(1972), could be overruled).And, in any event, the post-conviction court found petitioner not to be credible when he asserted that he would not have pleaded no contest if he had received adequate assistance of counsel.Cox v. Hendon,268 Or App 840, 842, 343 P.3d 677(2015)("[W]e have consistently required post-conviction petitioners who have pleaded guilty to an underlying crime to prove by a preponderance of the evidence that they would not have pleaded guilty had they received adequate assistance of counsel.").

[9]First Through Third Pro Se Assignments of Error.In his first through third pro se assignments of error, we understand petitioner to challenge the post-conviction court’s denial of his motion pursuant to Church v. Gladden,244 Or. 308, 417 P.2d 993(1966), as untimely.That motion was filed on June 13, 2022, just three days before petitioner’s postconviction trial, which took place on June 16, 2022.Petitioner had previously filed a motion on February 22, 2021, but then withdrew that motion because counsel had "complied with [petitioner’s] requests to do everything that [was] included" in the February 22C...