79
Submitted January 12, 2021, affirmed March 2, petition for review denied
July 7, 2022 (370 Or 56)
NICOLAS HERNANDEZ,
Petitioner-Appellant,
v.
Dan BERGER,
Superintendent,
MacLaren Youth Correctional Facility,
Defendant-Respondent.
Marion County Circuit Court
17CV38258; A171369
506 P3d 455
Petitioner filed a petition for post-conviction relief asserting that his trial
counsel was constitutionally deficient because she did not advise him of all the
elements the state would have to prove at a trial for aggravated murder based
on aiding and abetting before he entered into a plea agreement. On appeal, petitioner contends that the trial court incorrectly framed the performance prong
inquiry as a credibility contest between trial counsel and defendant as to whether
counsel advised defendant of the elements where petitioner’s and trial counsel’s
testimonies did not actually conflict. Consequently, petitioner contends that
the trial court’s “factual finding” that the case reduces to a credibility contest
is not supported by the record. Held: The Court of Appeals did not understand
the post-conviction court to have made the factual findings alleged by petitioner.
Furthermore, the post-conviction court did not err when it denied petitioner’s
petition, because there was insufficient evidence that he was prejudiced by any
deficiency in counsel’s advice.
Affirmed.
Dale Penn, Senior Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.
MOONEY, P. J.
Affirmed.
80 Hernandez v. Berger
MOONEY, P. J.
Petitioner filed a petition for post-conviction relief
asserting that his trial counsel was constitutionally deficient because she did not advise him before entering into a
plea agreement that, to obtain four convictions of attempted
aggravated murder based on aiding and abetting, the state
was required to prove that petitioner knew that there were
four occupants in the car into which his passenger fired a
firearm. He appeals, assigning error to the post-conviction
court’s denial of that claim. We affirm.
We review a post-conviction court’s determinations
for legal error, Montez v. Czerniak, 355 Or 1, 8,
322 P3d 487,
adh’d to as modified on recons,
355 Or 598,
330 P3d 595 (2014)
(citing Peiffer v. Hoyt,
339 Or 649, 660,
125 P3d 734 (2005)),
and we accept its findings of historical fact when “they are
supported by evidence in the record.” Davis v. Cain,
304 Or
App 356, 358,
467 P3d 816 (2020). In the absence of express
findings of fact, and the evidence could support more than
one factual conclusion, we “presume that the facts were
decided in a manner consistent with the [court’s] ultimate
conclusion.” Ball v. Gladden,
250 Or 485, 487,
443 P2d 621
(1968). We state the pertinent facts from the record in accordance with that standard.
A grand jury indicted petitioner on four counts of
attempted aggravated murder and one count of conspiracy
to commit murder. Those charges were based on evidence
that petitioner, then 17 years old, was driving a car when
his passenger fired a gun at a car with four occupants.
Petitioner pleaded guilty to all four counts of attempted
aggravated murder in exchange for the state’s agreement
to move to dismiss the conspiracy count and to recommend
a total incarcerative sentence of 216 months. The court
granted the motion to dismiss and followed the state’s sentencing recommendation.
Petitioner filed a petition for post-conviction relief
asserting ineffective assistance of counsel based on Article I,
section 11, of the Oregon Constitution and the Sixth and
Fourteenth Amendments to the United States Constitution,
which the post-conviction court denied. Petitioner contends that the post-conviction court incorrectly framed the
Cite as 318 Or App 79 (2022) 81
performance prong inquiry as a credibility contest, because
petitioner’s testimony did not conflict with trial counsel’s on
the ultimate fact of whether trial counsel advised petitioner
that, to obtain four convictions for attempted aggravated
murder, the state would need to prove that he intended
to kill each of the four occupants of the car. Consequently,
petitioner contends that the post-conviction court’s “factual
finding” that the case reduces to a credibility contest is not
supported by the record and we should reverse or, alternatively, remand for the post-conviction court to reconsider the
evidence. We disagree.
Petitioner accurately notes that the state did not
offer testimony that trial counsel had advised petitioner that,
for the state to obtain multiple convictions for attempted
aggravated murder, it would be required to prove that
petitioner knew that the car into which his passenger had
fired held four occupants. The state did, however, offer trial
counsel’s sworn declaration that petitioner had told her that
“he was aware there were several persons in the vehicle.”
Petitioner, on the other hand, testified that he did not know
that there was more than one person in the car. Thus, the
record sufficiently establishes the existence of a credibility
contest between petitioner and trial counsel as to that key
point, one that the post-conviction court resolved in favor of
trial counsel.
To the extent that petitioner is arguing that the
court erroneously found a credibility dispute with respect to
the testimony of trial counsel and that of petitioner on the
point of whether counsel advised petitioner of the elements
of the offense, and then resolved that contest by finding that
trial counsel did advise petitioner on the elements of the
offense, we do not understand the court to have made those
findings. Beyond that, the court was not required—based
on this record—to find either that counsel did not inform
petitioner of the state’s proof obligation, or that petitioner
did not know the state’s proof obligation at the time of his
plea. As the superintendent points out, in the plea petition
and the plea colloquy, petitioner agreed that he “intentionally attempted to cause the deaths” of four named individuals, which tends to suggest that petitioner was aware of the
elements of the state’s case, undermining petitioner’s claim
82 Hernandez v. Berger
that he was prejudiced by any deficiency in counsel’s advice.
In other words, on this record, the court permissibly found
that petitioner failed to meet his burden of proof, as it stated
in its judgment.
Petitioner’s reliance on Aquino v. Baldwin, 163 Or
App 452,
991 P2d 41 (1999), adh’d to as modified on recons,
169 Or App 464,
12 P3d 51 (2000), is misplaced because
Aquino concerned a factual finding that was not supported
by evidence in the record. Because the finding was not supported by the record there, we concluded that we were not
bound by it. Here, the evidence supports the court’s finding
that there was an inconsistency between petitioner’s testimony and that of his trial counsel. It follows that the court’s
credibility findings were also supported by the evidence and
we are, thus, accordingly bound by those findings.
Affirmed.
