Barnett v. Brown

                                    257

Submitted March 4, affirmed April 20, petition for review denied July 28, 2022
                               (

)


                TRIVONNE JAY BARNETT,
                    Petitioner-Appellant,
                              v.
                     Nichole BROWN,
                      Superintendent,
           Columbia River Correctional Institution,
                  Defendant-Respondent.
              Multnomah County Circuit Court
                   19CV41065; A174841
                                

   Patricia A. Sullivan, Senior Judge.
   Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   PER CURIAM
   Affirmed.
258                                           Barnett v. Brown

        PER CURIAM
          Police found incriminating evidence in petitioner’s
backpack when they searched it after placing him into custody. The search was warrantless, and petitioner had an
arguably meritorious argument that no warrant exception
adequately permitted the search. Ultimately, petitioner
pleaded guilty, then filed for post-conviction relief, arguing
that trial counsel was ineffective and inadequate for failing
to litigate a motion to suppress prior to petitioner accepting
the plea offer from the state. The post-conviction court concluded that trial counsel was not ineffective. We affirm.
         Generally, to demonstrate inadequate assistance, a
petitioner must show that “every reasonable defense attorney would have” pursued a particular strategy. Hagberg v.
Coursey, 

, 

 (2015). When
addressing a plea offer, “defense attorneys must make careful strategic choices in balancing opportunities and risks.”
Premo v. Moore, 

, 

, 

 (2011). Accordingly, “strict adherence to the Strickland
standard [is] is all the more essential when reviewing the
choices an attorney made at the plea bargain stage.” 

. We do not view counsel’s performance through “ ‘the distorting lens of hindsight.’ ” Owen v. Taylor, 

, 

 (2017) (quoting Johnson v. Premo, 

, 

 (2017)). “[A]n after-the-fact assessment [is] counter to the deference that must be accorded
counsel’s judgment and perspective when the plea was negotiated, offered, and entered.” Moore, 

.
         Here, the post-conviction court considered the affidavit of defense counsel, which stated:
   “While a plea offer had been extended to [petitioner], I
   did not believe it was a reasonable offer and informed the
   Deputy District attorney of my dissatisfaction. I encouraged
   the DDA to make a realistic offer and I advised him that I
   thought there was a meritorious argument that the search
   of the vehicle and backpack was improper and subject to a
   motion to suppress. We exchanged arguments and authorities on the issue while we also discussed settlement. (See
   exhibits 2, 3, 4, and 5 attached which are true and accurate
   copies of emails exchanged.) I advised [petitioner] that I
   would file motions to suppress if we proceeded to trial as
Cite as 

 (2022)                                  259

   well as any other motions that were appropriate. I advised
   him that we would have the right to cross-examine the witnesses, call our own witnesses, if any, and [petitioner] had
   the right to testify. [Petitioner] wanted me to continue to
   seek a favorable plea agreement.”
         Additionally, the post-conviction court considered
the affidavit from the prosecutor, which stated, in part:
   “[Trial counsel] was using the threat of a motion to suppress as leverage to obtain a better offer and was able to
   provide me with the case law he had researched on that
   issue. Although I believed that [the] state would prevail on
   a motion to suppress, in order to ensure certainty by a way
   of a plea, versus having to litigate the legal and factual
   issues, I believed it was in the best interest of the state to
   accept [trial counsel’s] request.”
         In light of that evidence, counsel’s strategy to delay
the filing of a motion to suppress until trial and use that
leverage to extract plea concessions was not just far from
constitutionally inadequate, it was effective. Petitioner has
not demonstrated deficient performance by counsel under
either the state or federal constitutions, and the post-conviction court did not err in so concluding.
         Affirmed.