Evans v. Nooth

                                       331

      Argued and submitted October 23, 2018, affirmed October 30, 2019


                    MICHAEL JAMES EVANS,
                       Petitioner-Appellant,
                                 v.
                          Mark NOOTH,
                         Superintendent,
                Snake River Correctional Institution,
                      Defendant-Respondent.
                   Malheur County Circuit Court
                       12039338P; A161781
                                  

     Defendant appeals from a judgment denying his petition for post-conviction
relief, arguing he received ineffective assistance of counsel. Specifically, defendant asserts that his appellate counsel, who prevailed on appeal as to certain
counts and who challenged the admission of expert testimony diagnosing abuse
as to one victim, was ineffective because she failed to argue that the expert’s
testimony affected the entire trial, including counts against a separate victim.
To prevail on appeal under a directed verdict standard, defendant bears the burden of persuasion and production to present evidence establishing, among other
standards, either directly or inferentially, what the objectives of the litigation
were. Held: Defendant presented no evidence of the objectives of his appellate
litigation, which, as a threshold matter, precludes him from establishing that
appellate counsel was ineffective.
    Affirmed.



    J. Burdette Pratt, Senior Judge.
   Harrison Latto argued the cause for appellant. On the
opening brief was Jed Peterson. Michael James Evans filed
the supplemental brief pro se.
   Erin K. Galli, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Frederick Boss,
Deputy Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
    JAMES, J.
    Affirmed.
332                                            Evans v. Nooth

        JAMES, J.
         Petitioner appeals from a judgment denying his
petition for post-conviction relief, raising two assignments
of error in his opening brief and one assignment of error in
a supplemental brief. We reject his second and supplemental
assignments without discussion, writing only to address his
first assignment of error, wherein he asserts that the trial
court erred in relation to his ineffective assistance of appellate counsel claim. Specifically, petitioner asserts that his
appellate counsel, who challenged the admission of expert
testimony diagnosing abuse as to one victim, A, and prevailed on appeal as to certain counts, was ineffective because
she failed to argue that the expert’s testimony affected the
entire trial, including counts against a separate victim, B.
To prevail on appeal under the circumstances, petitioner
must establish that the record in this case contains no genuine issue of material fact on any of the elements of petitioner’s post-conviction claim and that he was entitled to a
judgment in his favor as a matter of law. We conclude that
here, the record did not require a directed verdict in favor of
petitioner, and accordingly, the post-conviction court did not
err. We affirm.
          For purposes of our disposition, a detailed recitation
of the facts in the underlying criminal case is unnecessary
and would not benefit the bench or bar. It suffices to say that
in 2006, a grand jury indicted petitioner for sexual abuse
in the first degree (Counts 1-8 and 13-15) and sodomy in
the first degree (Counts 9-12). The alleged victims were A, a
girl, (Counts 1-12) and B, a boy, (Counts 13-15). At trial, the
state offered expert testimony from a doctor, Koeller, diagnosing A with having been sexually abused, based in part
on the appearance of her hymen. The jury found petitioner
guilty on Counts 1-6, 9, and 10 (involving A), and 13 and 14
(involving B), and it acquitted him of Counts 7, 8, 11, and 12
(involving A) and Count 15 (involving B).
         Petitioner appealed. Appellate counsel raised multiple assignments of error in the opening brief, the first of
which was a challenge to the admission of expert testimony
diagnosing A with having suffered sexual abuse, without
an OEC 104 hearing. Petitioner raised two supplemental
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 (2019)                                  333

assignments of error pro se, unrelated to the assignments
raised by counsel. We agreed that the first assignment of
error established that the trial court erred in failing to provide an OEC 104 hearing and reversed on that assignment
of error, noting that “[t]he issues on appeal concern only the
convictions pertaining to defendant’s abuse of A (Counts 1-6
and 9-10).” State v. Evans, 

, 

(2010).
         The state petitioned for reconsideration asking us to
clarify that “our disposition, which specified the counts that
were reversed and remanded, does not affect other counts
unaffected by the error, which should be affirmed.” State
v. Evans, 

, 

 (2010), rev den,

 (2011). That request was unopposed by petitioner’s appellate counsel. We agreed, modifying our previous
dispositional tagline to indicate that nonaffected counts—
specifically the counts related to B, which were not the subject of Koeller’s testimony—were otherwise affirmed.
         Petitioner subsequently filed a petition for post-conviction relief raising numerous claims. Petitioner’s fifth
asserted claim specifically addressed inadequate and ineffective assistance of appellate counsel, asserting:
        “On October 1, 2009, before oral argument on petitioner’s direct appeal, the Oregon Supreme Court decided State
   v. Southard, 

, 

 (2009). Based upon
   this decision, petitioner’s appellate counsel knew or should
   have known that, given the evidence received by the jury
   … the trial court’s failure to grant petitioner an OEC 104
   hearing required a reversal of petitioner’s convictions for
   offenses against ‘A’ and ‘B.’
       “On or after October 1, 2009, appellate counsel failed
   to request that the Court of Appeals reverse and remand
   Counts 13 and 14 based on State v. Southard, 

,
   

 (2009), and on grounds that … Dr. Koeller’s
   expert opinion testimony diagnosing ‘A’ with sexual abuse,
   improperly vouched for the credibility of both ‘A’ and ‘B’ and
   created a substantial risk that the jury was prejudiced by
   that testimony when evaluating the credibility of both ‘A’
   and ‘B.’ Instead, appellate counsel improperly conceded
   that petitioner’s convictions involving ‘B’ on Counts 13 and
   14, were unaffected by the trial court’s error.
334                                             Evans v. Nooth

       “Competent appellate counsel, exercising reasonable
   professional skill and judgment, would interpret State v.
   Southard, 

, 

 (2009) to support reversal and remand of Counts 13 and 14 for the reasons alleged
   above and would not concede that Counts 13 and 14 should
   be affirmed.
      “There is a reasonable probability that the Court of
   Appeals would have reversed and remanded petitioner’s
   convictions on Counts 13 and 14 if appellate counsel had
   not conceded that those counts were unaffected by the trial
   court’s error and had argued that State v. Southard, 

, 

 (2009), required reversal and remand of
   those counts.”
         In support of his claims, petitioner introduced
numerous pieces of evidence including declarations of various individuals, as well as documentary exhibits. However,
petitioner did not offer any testimony, either in person or
through affidavit or declaration, from appellate counsel.
Similarly, while petitioner himself testified at length about
his interactions with trial counsel, petitioner’s testimony
did not discuss his interactions with appellate counsel. In
support of his fifth claim, petitioner offered solely the appellate brief filed by counsel. Ultimately, the post-conviction
court denied relief on all claims, and this appeal followed.
On appeal, defendant argues, among other contentions, that
he was entitled to judgment in his favor as a matter of law
on his claim that appellate counsel was constitutionally
inadequate or ineffective.
         Before the post-conviction court, petitioner did not
move for directed verdict pursuant to ORCP 60. Typically, a
party must move to withdraw a factual issue from the factfinder in order to be entitled to raise on appeal the argument
that the party should have prevailed on that issue as a matter of law. Wood Ind’l Corp. v. Rose, 

, 

 (1975). However, in the context of a post-conviction
bench trial, the Oregon Supreme Court has held that
“[r]equiring the party with the burden of persuasion on a
claim to make a motion for directed verdict (or another similar motion) when the court serves as the finder of fact does
not promote judicial efficiency or fairness to the parties.”
Peiffer v. Hoyt, 

, 

 (2005).
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 (2019)                             335

         However, Peiffer speaks to preservation, not to
the standard of review. Thus, while a post-conviction petitioner may appeal from a post-conviction judgment, and use
arguments advanced in closing as a proxy for a motion for
directed verdict, we do not reweigh the evidence. Rather, we
review the post-conviction proceedings for errors of law, as
if a motion for directed verdict had been made. Peiffer, 

; Moen v. Peterson, 

, 510 n 6, 

 (1991); see also Batzer Construction, Inc. v. Boyer, 

, 

, rev den, 

 (2006).
         In reviewing the post-conviction court’s denial of
a motion for directed verdict—even one raised via closing
argument pursuant to Peiffer—we determine whether the
facts in evidence, and inferences drawn from those facts,
interpreted in the nonmoving party’s favor, entitled petitioner to a favorable decision as a matter of law. Roop v.
Parker Northwest Paving Co., 

, 

 (2004), rev den, 

 (2005); Jones v. Emerald
Pacific Homes, Inc., 

, 

, rev den,

 (2003); Kotera v. Daioh Int’l U.S.A. Corp., 

, 

 (2002). With that standard in
mind, we turn to the merits.
         A defendant charged with a crime has a constitutional right to counsel under Article I, section 11, of the
Oregon Constitution and under the Sixth Amendment to
the United States Constitution. Under both constitutions,
“the defendant’s right is not just to a lawyer in name only,
but to a lawyer who provides adequate assistance.” State
v. Smith, 

, 

 (2005). Both constitutions require “adequate performance by counsel” concerning the “functions of professional assistance which an
accused person relies upon counsel to perform on his behalf.”
Krummacher v. Gierloff, 

, 

 (1981);
see also Strickland v. Washington, 

, 

, 

 (1984) (Sixth Amendment right
to counsel requires not just counsel, but “effective” counsel).
         When a defendant believes he has been denied his
constitutional right to adequate counsel, he may bring an
action to vindicate that right by filing a petition for post-conviction relief. In Oregon, except as specified by statute,
336                                            Evans v. Nooth

post-conviction actions are civil proceedings governed by the
Oregon Rules of Civil Procedure and the Oregon Evidence
Code. Sanchez v. State of Oregon, 

, 

, rev den, 

 (2015); Lopez v. Nooth, 

, 

 (2017) (“In Oregon, actions
for post-conviction relief are civil proceedings.”); Schelin
v. Maass, 

, 

, rev den, 

 (1997) (holding same); Kumar v. Schiedler, 

, 

 (1994) (De Muniz, J., concurring)
(“Post-conviction is a civil proceeding[.]”).
         Like any plaintiff in a civil action, a post-conviction
petitioner bears the burden of production and persuasion for
each material fact necessary to establish the claim. For a
claim of inadequate assistance of counsel under the Oregon
Constitution, the post-conviction petitioner, as the plaintiff,
must establish by a preponderance of the evidence, first that
his attorney “failed to exercise reasonable professional skill
and judgment,” and second, “that counsel’s failure had a
tendency to affect the result of his trial.” Lichau v. Baldwin,

, 

 (2002) (citation omitted).
        For a claim of ineffective assistance of counsel
under the Sixth Amendment, a post-conviction petitioner,
as the plaintiff, must establish by a preponderance of the
evidence, that his or her trial counsel’s performance “fell
below an objective standard of reasonableness.” Strickland,

, 

. And, if a petitioner proves
that counsel was ineffective, he or she also must show that
there was a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” 

.
         In assessing inadequate or ineffective assistance of
counsel claims, courts have long recognized that any such
inquiry—particularly when tactical choices of counsel are
called into question—is a highly context-driven endeavor.
At the end of the day, the court must evaluate the reasonableness of counsel’s representation “from counsel’s perspective at the time of the alleged error and in light of all
the circumstances, and the standard of review is highly
deferential.” Kimmelman v. Morrison, 

,

, 

 (1986). The proper measure
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of attorney performance is judged by the “reasonableness
under prevailing professional norms” which includes a “context dependent consideration of the challenged conduct as
seen from counsel’s perspective at the time of that conduct.”
Wiggins v. Smith, 

, 

, 

 (2003) (citations omitted). The inquiry focuses on
the “lawyer’s conduct from the lawyer’s perspective at the
time, without the distorting effects of hindsight.” Lichau,

. A reviewing court will not “second-guess a
lawyer’s tactical decisions in the name of the constitution
unless those decisions reflect an absence or suspension of
professional skill and judgment.” Gorham v. Thompson, 

, 

 (2001).

         In evaluating such context-dependent decisions
from counsel’s perspective, it is essential to recognize that
the lawyer is but the agent of the client. It is the role of
the client, not the lawyer, to set the objectives of the client’s
litigation. “It is the role of the lawyer [to be] a professional
advisor and advocate, not to usurp his client’s decisions concerning the objectives of representation.” United States v.
Wellington, 

 (2d Cir 2005) (internal quotation marks omitted). As the American Bar Association
Model Rules of Professional Conduct (RPC) state, “a lawyer
shall abide by a client’s decisions concerning the objectives
of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued.” RPC 1.2. That language is repeated in the Oregon
Rules of Professional Conduct.

         A criminal defense attorney, both at trial and on
appeal, cannot employ a one-size-fits-all approach to representation. Sometimes a client insists on a trial, other times a
client will want to negotiate. Some clients will want to challenge some counts, but not others. Some clients will want to
appeal some convictions, while leaving others unchallenged.
“The right to defend is personal. The defendant, and not his
lawyer or the state, will bear the personal consequences of a
conviction.” Faretta v. California, 

, 

, 

 (1975). While there are a myriad of
tactical decisions in how to best conduct litigation that are
properly the province of the attorney, deciding on the broader
338                                            Evans v. Nooth

objectives of litigation is the client’s decision to make. The
lawyer is obligated to make tactical decisions that work
towards those objectives, not against them.
          As such, a petitioner cannot prevail on a claim for
post-conviction relief if the attorney merely carried out tactical decisions at the directions of the client in furtherance
of the client’s goals for litigation—goals that the client now
regrets. See Roe v. Flores-Ortega, 

, 

, 

 (2000) (“[A] defendant who explicitly
tells his attorney not to file an appeal plainly cannot later
complain that, by following his instructions, his counsel
performed deficiently.” (Citations omitted; emphasis in original.)); see also Coleman v. Mitchell, 

, 448 n 16
(6th Cir 2001) (“[C]ounsel was not ineffective for following
the defendant’s clear and informed instruction.” (Citation
omitted.)); Frye v. Lee, 

 (4th Cir 2000)
(observing that if the court were to hold that defense counsel
“rendered ineffective assistance [by acceding to the defendant’s instructions not to present] mitigation evidence, [the
court] would be forcing defense lawyers in future cases to
choose between Scylla and Charybdis”); Autry v. McKaskle,
727 F2d 358, 360-61 (5th Cir 1984) (rejecting claim of ineffective assistance of counsel for failure to investigate and
present evidence at sentencing phase where defendant
had instructed his attorney not to fight the death penalty);
cf. Brookhart v. Janis, 

, 

, 

 (1966) (reversing judgment of conviction where
defense counsel, over the defendant’s in-court objections
that he did not wish to plead guilty, waived the defendant’s
right to present a defense and cross-examine witnesses).
         Accordingly, for most claims wherein a post-conviction petitioner is challenging the tactics employed by
counsel, to prevail as a matter of law under a directed verdict standard, the petitioner must present evidence establishing, either directly or inferentially, what the objectives
of the litigation were. Typically, though not always, that
can be provided by statements from counsel or testimony
from the petitioner. But there must be some evidence of the
broader objectives of litigation to be able to accurately assess
counsel’s performance in the context-dependent manner
required.
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          Here, petitioner presented no evidence of the objectives of his appellate litigation. Consequently, on appeal
petitioner is forced to advance a categorical argument that
all appellate attorneys render constitutionally inadequate or
ineffective representation when they fail to challenge each
and every count of conviction. For the reasons we have discussed, that argument fails. Alternatively, petitioner may
be relying on an unspoken argument that, absent contrary
evidence, a defendant is presumed to want to vigorously
challenge each and every criminal charge as the objective
of his litigation, both at trial and on appeal. But that argument, too, must fail. ORS 40.135 provides a discrete list of
permissible presumptions, and a presumption about a criminal defendant’s objectives of litigation is not included. As
the Oregon Supreme Court has cautioned, the list of presumptions should be strictly construed. State v. Garrett, 

, 

 (1978) (“On the contrary, the more
cogent reasoning would require a strict rather than liberal
construction of statutorily imposed presumptions, since
they are based primarily upon probability and judicial convenience.”). Accordingly, we cannot conclude that the facts
in evidence entitled petitioner to a favorable decision as a
matter of law.
        Affirmed.