Maxfield v. Cain

                                       405

   Argued and submitted September 29, 2021; reversed and remanded with
   instructions to grant post-conviction relief on petitioner’s claim that trial
        counsel was inadequate under Article I, section 11, for failing to
      adequately investigate and present mitigation evidence, otherwise
                           affirmed October 19, 2022


                    BRANDON MAXFIELD,
                      Petitioner-Appellant,
                                v.
                           Brad CAIN,
                        Superintendent,
               Snake River Correctional Institution,
                     Defendant-Respondent.
                  Malheur County Circuit Court
                      12129824P; A172028
                                   

    Petitioner appeals from a judgment denying him post-conviction relief (PCR).
He argues that the PCR court erred in finding that he was not prejudiced by
his trial counsel’s failure to investigate mitigating evidence for sentencing. In
particular, petitioner contends that available mitigating evidence created “more
than a mere possibility” that the sentencing court would have decided not to
impose a separate consecutive sentence for each of the six victims. Held: The
Court of Appeals determined that, when the claim involves a failure to investigate mitigating evidence, the first step is to identify the precise question before
the sentencing court and the legal standard applicable to that question. The second step is to apply the “more than a mere possibility, but less than a probability”
framework to the legal question before the sentencing court. After weighing the
mitigating evidence against the aggravating evidence, the court determined that
the uninvestigated evidence regarding petitioner’s neurological capabilities created more than a mere possibility that the sentencing court would have decided
to impose one of the six sentences concurrently.
     Reversed and remanded with instructions to grant post-conviction relief on
petitioner’s claim that trial counsel was inadequate under Article I, section 11,
for failing to adequately investigate and present mitigation evidence; otherwise
affirmed.



    J. Burdette Pratt, Senior Judge.
   Ryan T. O’Connor argued the cause for appellant. Also on
the brief was O’Connor Weber LLC.
   Ryan Kahn, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
406                                         Maxfield v. Cain

  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
   KAMINS, J.
   Reversed and remanded with instructions to grant post-conviction relief on petitioner’s claim that trial counsel was
inadequate under Article I, section 11, for failing to adequately investigate and present mitigation evidence; otherwise affirmed.
Cite as 

 (2022)                                                    407

            KAMINS, J.
          This is the third time this case is before us after
we twice previously reversed and remanded the judgment
denying petitioner post-conviction relief (PCR). Maxfield
v. Nooth, 

, 

 (2016) (Maxfield I);
Maxfield v. Cain, 

, 

 (2019)
(Maxfield II). In this appeal, petitioner argues that the PCR
court erred in finding that he was not prejudiced by his trial
counsel’s deficient performance at sentencing. We conclude
that petitioner has established prejudice and is entitled to a
new sentencing hearing. We therefore reverse and remand
with instructions to grant post-conviction relief on petitioner’s claim that trial counsel was inadequate and ineffective
for failing to investigate and develop mitigating evidence for
sentencing.
          Petitioner was found guilty following a bench trial
of three counts of robbery in the first degree and six counts
of robbery in the second degree, based on petitioner robbing
five different retail stores during a one-month period when
he was 22 years old. At sentencing, the trial court imposed
six sentences (one for each of the six victims), five to run
consecutively, for a total of 40 years (480 months) in prison
pursuant to Ballot Measure 11’s mandatory minimum. ORS
137.700(2)(R), (S).1
        Petitioner initiated post-conviction proceedings,
claiming that trial counsel was ineffective during sentencing. Specifically, “[t]rial counsel failed to conduct an adequate and effective investigation into the petitioner’s background” for the purpose of presenting mitigating evidence
at sentencing.2 In support, petitioner introduced affidavits
     1
       Although petitioner was sentenced under a previous version of the statute,
the amendments changed only the lettering of the subsections for petitioner’s
offenses, and so we cite the current version of the statute. ORS 137.700 (2009),
amended by Or Laws 2019, ch 635, § 10.
     2
       Throughout the various proceedings, petitioner’s claim has at times been
referred to as a failure to present mitigation evidence. However, the claim for
relief before us, as contained in the petition, is that trial counsel failed to conduct
an adequate investigation for purposes of “identify[ing] those aspects of the petitioner’s background that would most favorably impact the trial court’s sentencing
decision.” See Hale v. Belleque, 

, 

, adh’d to on
recons, 

, 

, rev den, 

 (2013) (the allegations
of the petition frame the issues that a PCR court can consider).
408                                                        Maxfield v. Cain

from friends and family members, and presented live testimony from a legal expert and a neuropsychological expert.3
The affidavits outlined petitioner’s difficult childhood, which
included many failures by the adults around him and drug
use from an early age. The neuropsychological expert presented evidence regarding petitioner’s neurological difficulties and their potential causes.
         The original PCR court determined that counsel’s
failure to offer any mitigation evidence in light of the sentence his client was facing was deficient, but that petitioner
had not demonstrated prejudice. On appeal, we reversed the
judgment, determining that the court had applied an incorrect legal standard to the prejudice analysis. Maxfield I,

 (determining that the PCR court erred
when it required petitioner to prove that it was more likely
than not that he would have received a different sentence).
On remand, the PCR court changed its original ruling and
determined that trial counsel’s performance was not actually deficient and denied relief to petitioner on that alternative basis. We reversed again, concluding that the court had
exceeded the scope of remand. Maxfield II, 

. After the second remand, the PCR court again determined that, despite counsel’s deficiency, petitioner failed to
demonstrate prejudice, and petitioner now appeals.
         Focusing its finding on the original sentencing
judge’s rationale, the PCR court concluded that the additional evidence would not have made a difference at sentencing. As to the affidavits of petitioner’s friends and family, the
PCR court concluded that those would have had little impact
because much of the information was in fact more aggravating than mitigating, and that some of the information
was already known to the sentencing court. The PCR court
discounted the import of the neuropsychological expert’s
conclusion that petitioner was impulsive because the court
found that that conclusion was undermined by the degree
of planning involved in petitioner’s crimes. The court further reasoned that the expert’s testimony that petitioner’s
issues were “hard wired” and difficult to treat could have

    3
      In this appeal, petitioner does not rely on the testimony of the legal expert
in support of his claim, and so we do not address it in this opinion.
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been perceived as aggravating rather than humanizing.
The PCR court determined that petitioner’s written statement was both not credible and also more harmful than
mitigating.
         On appeal, the parties dispute whether the mitigating evidence petitioner presented is enough to establish
prejudice; that is, whether the evidence raises “more than
a mere possibility, but less than a probability” that, had
trial counsel properly investigated potential mitigating evidence, the sentence would have been different. Maxfield I,

. Petitioner argues that the evidence was
sufficient to demonstrate prejudice and emphasizes that
the sentencing court had discretion as to whether it ran the
Measure 11 sentences consecutively or concurrently, making it more likely that the mitigation evidence could have
tended to affect the sentence. The superintendent responds
that much of the new mitigating evidence was actually “a
two-edged sword,” if not strictly aggravating, and therefore
contends that it is unlikely the evidence would have resulted
in a shorter sentence.
         We review PCR proceedings for errors of law. Green
v. Franke, 

, 

 (2015). Findings of
historical fact are binding on this court if there is evidence
in the record to support them. 

 If the PCR court failed to
make findings of fact on all of the issues—and there is evidence from which such facts could be decided more than one
way—we will presume the facts were decided consistently
with the PCR court’s conclusions of law. 

         As an initial matter, we observe that, because the
prejudice analysis “should not involve any consideration
of the individual judge or the factors that might or might
not have motivated a specific judge to make a decision,” the
PCR court erred in focusing the inquiry on what would have
impacted that particular sentencing judge. Pike v. Cain, 

, 

, rev den, 

 (2020)
(internal quotation marks omitted).
        In assessing whether counsel’s deficient performance
caused prejudice under Article I, section 11, of the Oregon
Constitution, we must determine that there is more than
a mere possibility, but not necessarily a probability, that
410                                          Maxfield v. Cain

counsel’s deficient performance affected the outcome.
Maxfield I, 

. Prejudice under the federal
constitution is established if the petitioner shows there is
a reasonable probability that, but for counsel’s deficient
performance, the result would have been different. Hale v.
Belleque, 

, 

, adh’d to on
recons, 

, 

, rev den, 

(2013). That is established if the probability is sufficient to
undermine confidence in the outcome. Porter v. McCollum,

, 

, 

 (2009). The
state and federal standards for determining the adequacy of
legal counsel are functionally equivalent. See, e.g., Montez v.
Czerniak, 

, 

, adh’d to as modified on
recons, 

, 

 (2014) (so acknowledging);
Pike, 

 (“A functionally equivalent twoelement standard governs petitioner’s claim of ineffective
assistance of counsel under the Sixth Amendment.”).
         When the claim involves a failure to investigate
mitigating evidence at sentencing, we evaluate whether
there was “more than a mere possibility that an adequate
investigation would have yielded information that could
have been used at the sentencing hearing in a way that gave
rise to more than a mere possibility that the outcome of the
proceeding could have been different as a result.” Monfore
v. Persson, 

, 

 (2019) (citing
Richardson v. Belleque, 

, 266-68, 

(2017) (internal quotation marks omitted)).
         The “more than a mere possibility, but less than a
probability” standard can be difficult to apply in the context
of mitigating evidence, so it is helpful to outline a methodology for its application. The first step is to determine the
precise question before the sentencing court and the legal
standard applicable to that question. See Strickland v.
Washington, 

, 

, 

 (1984) (“The governing legal standard plays a critical
role in defining the question to be asked in assessing the
prejudice from counsel’s errors.”); Snyder v. Amsberry, 

, 

 (2020) (analyzing the prejudicial impact of counsel’s deficient performance based on
the context of the legal proceeding at issue).
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         The second step is to apply the “more than a mere
possibility, but less than a probability” framework to the
legal question before the sentencing court. To aid in our
inquiry, and because the state and federal standards for
ineffective assistance of counsel are “functionally equivalent,” we turn to federal jurisprudence for guidance. Montez,
355 Or at 6-7. To assess prejudice in sentencing, federal
courts “must consider the totality of the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding—and reweigh it against
the evidence in aggravation.” Andrus v. Texas, ___ US ___,

, 

 (2020) (internal quotation marks and brackets omitted); see also Sears v. Upton,

, 

, 

 (2010) (“A
proper analysis of prejudice under Strickland would have
taken into account the newly uncovered evidence … along
with the mitigation evidence introduced during [petitioner’s]
penalty phase trial, to assess whether there is a reasonable
probability that [petitioner] would have received a different sentence after a constitutionally sufficient mitigation
investigation.”).
         In sum, we look at the totality of the mitigation evidence and reweigh it against the evidence of aggravation in
order to determine, in answering the specific legal question
before the sentencing court, whether there was “more than a
mere possibility that competent defense counsel could have
used the information … in ways that could have tended
to affect the outcome.” Richardson, 362 Or at 266 (internal
quotation marks omitted).
        Here, petitioner is challenging the outcome of the
penalty phase of his trial, where the sentencing court had
two decisions to make: whether to impose the mandatory sentences required by Measure 11, ORS 137.700(2)(R) and (S),
and whether those sentences should run concurrently or
consecutively. Under Measure 11, the sentencing court may
only impose a lesser sentence in certain circumstances,
such as if the sentence is disproportionate under the
Oregon Constitution, or if the offense qualifies for a downward departure. See State v. Rodriguez/Buck, 

, 

 (2009) (analyzing a Measure 11 sentence
412                                         Maxfield v. Cain

to determine whether the sentence was “so disproportionately severe” that it requires reversal under Article I, section 16); ORS 137.712 (certain offenses, including robbery
in the second degree with some exceptions, are eligible for
a downward departure if the court finds substantial and
compelling reasons to do so). A sentence is disproportionate if it would “shock the moral sense of reasonable people.”
Rodriguez/Buck, 

 (internal quotation marks
omitted). Applying the framework above, we would weigh all
the mitigating evidence, including the newly presented evidence and what was presented at trial, against all aggravating evidence to determine whether the new evidence raised
more than a mere possibility that it would have impacted
the factors considered in the Measure 11 proportionality
inquiry: “(1) a comparison of the severity of the penalty and
the gravity of the crime; (2) a comparison of the penalties
imposed for other, related crimes; and (3) the criminal history of the defendant.” 

 As petitioner does not argue that
the unpresented mitigation evidence could have impacted
the sentencing court’s analysis of proportionality or would
have justified a downward departure, we do not address
those components of the sentencing court’s decision.
         Accordingly, we focus our analysis on the other decision before the sentencing court—whether to impose consecutive sentences. The rules governing the court’s authority in consecutive sentencing are contained in ORS 137.123
and are also limited by the concept of merger as provided by
ORS 161.067. As concerns this case, those statutes provide
authority to impose separate consecutive sentences when
there are separate criminal episodes and when there are
separate victims. ORS 137.123(2), (5)(b); ORS 161.067(2). If
consecutive sentences are authorized by statute, the decision
of whether to impose consecutive or concurrent sentences is
ultimately one of discretion. See State v. Gleason, 

, 

, rev den, 

 (1996) (reviewing trial court’s imposition of consecutive sentences for an
abuse of discretion); State v. Febuary, 

, 

 (2017) (“A judge has discretion to set the length of a
sentence within statutory and constitutional parameters.”);
Arthur W. Campbell, Law of Sentencing § 9:22 (3d ed 2004)
(“[P]roviding that no constitutional or statutory condition
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is violated, the final test for upholding the selection of a
concurrent or consecutive sentence is whether the discretion was abused.” (Internal quotation marks and brackets
omitted.)).

          Petitioner does not contend that the mitigating evidence presented to the PCR court would have undermined
the legal authority for the sentencing court’s imposition of
consecutive sentences. Rather, the question is whether the
omitted mitigating evidence creates more than a mere possibility that an “objective, reasonable factfinder” would have
chosen to exercise its discretion not to impose all the sentences for separate victims consecutively. Pike, 

.

         Aside from the authority granted in ORS 137.123,
there is little to guide or limit the sentencing court’s discretion in the decision to impose consecutive sentences. See,
e.g., Or Const, Art I, § 44(1)(b) (“No law shall limit a court’s
authority to sentence a criminal defendant consecutively for
crimes against different victims.”); OAR 213-012-0020(5)
(certain limitations on consecutive sentences shall not apply
“to consecutive sentences imposed for crimes that have different victims”); ORS 137.123(5)(b) (allowing imposition of
consecutive sentences for convictions arising out of a continuous and uninterrupted course of conduct if the criminal offenses relate to different victims). Under the Model
Penal Code, “a reasonable limit” should be set on the extent
to which multiple sentences can be accumulated. American
Law Institute, Model Penal Code and Commentaries,
§ 7.06, explanatory note at 270 (1985). The American Bar
Association recommends that a sentencing court should not
impose consecutive sentences that exceed “a total term reasonably related to the gravity of the offenses.” American Bar
Association’s Standards for Criminal Justice: Sentencing
(1994) (ABA Standards), Standard 18-6.5(f). The Oregon
Supreme Court has explained in the context of proportionality challenges that “the gravity of an offense refers to the
gravity of the defendant’s particular conduct and the statutorily defined crime itself. To the extent that an offender’s
personal characteristics influence his or her conduct, those
characteristics can affect the gravity of the offense.” State v.
414                                                        Maxfield v. Cain

Ryan, 

, 

 (2017) (internal quotation marks omitted).
         Without more to guide the court’s exercise of discretion in imposing consecutive or concurrent sentences, we are
left to balance the mitigating evidence, including the new
evidence petitioner contends that counsel should have investigated, against the aggravating evidence, and evaluate its
impact on the sentencing court’s discretion.
         At petitioner’s original sentencing hearing, the evidence presented by defense counsel consisted of testimony
from petitioner and his parents. Petitioner’s mother gave a
short statement asking the court not to imprison her son for
the rest of his life and attributing his behavior to addiction.
His father gave a statement ascribing his son’s behavior to
bad friendships and drug addiction and asking the court
to show leniency. Petitioner apologized to the victims and
spoke about working on himself so that he could give back
to the community and make up for his wrongdoings.
          At the post-conviction trial, petitioner presented significantly more mitigating evidence relating to petitioner’s
difficult childhood and its impact on his neurological capabilities.4 According to that evidence, petitioner was born
prematurely after a drug-affected pregnancy. He was born
with some mild “physical deformities,” leading to difficulty
assimilating socially and to a history of speech problems.
Both of petitioner’s parents were arrested at different times,
and petitioner’s father was abusing drugs or in prison for
large portions of his childhood. In this environment, petitioner began using drugs in elementary school, later encouraged by some of the adults in his life. When he was 17, petitioner admitted to attempting suicide four different times.
         A neuropsychologist testified that, although functioning in the low average range of intellectual abilities,
petitioner has extraordinary difficulties staying focused.
According to the expert, petitioner’s extremely early use of
serious drugs likely changed the neurological development
of his brain. That, combined with the impact of drug use

     4
       Because the PCR court found portions of petitioner’s letter not to be credible, we do not rely on its contents.
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in-utero and petitioner’s difficult childhood, placed him at
a significantly higher risk of learning and mood disorders,
made it difficult for him to exercise control over his behavior, exacerbated his difficulties socially and academically,
and created the need for a long-term residential treatment
program.
         The aggravating evidence against petitioner was
also substantial. Petitioner committed five different armed
robberies over the course of a one-month period. As a juvenile he had previously been placed on probation for several
offenses, the most serious being assault in the fourth degree,
and he had committed eight probation violations. Attempts
to place petitioner in residential substance abuse treatment were unsuccessful, although petitioner claims that his
mother thwarted those efforts. Finally, petitioner’s crimes
impacted six different victims. Two victim impact statements were read at sentencing describing the significant
and long-term fear those victims continued to experience.
          The fact that petitioner’s crimes involved so many
different victims would weigh heavily in aggravation.
However, when balanced against the new mitigating evidence, and in particular, the neuropsychologist’s testimony
regarding petitioner’s cognitive abilities and culpability, a
sentencing court could have evaluated the gravity of petitioner’s offenses differently and imposed one or more of the
six sentences concurrently. Specifically, petitioner’s neurological issues could have been used by competent counsel
to argue that petitioner had diminished mental capacity, a
recognized mitigating factor for sentencing. OAR 213-008-
0002(1)(a)(C). Additionally, the neuropsychologist testified
that petitioner’s exposure to methamphetamine in-utero
and drug use as a child would have made it harder for him
to regulate his behavior, which could have been used by
defense counsel to argue that petitioner was less culpable
for his actions, lessening the gravity of his offenses. See
Williams v. Taylor, 

, 

, 

 (2000) (unpresented evidence of petitioner’s mental
difficulties could have demonstrated to the jury that the
violent behavior was a compulsive reaction rather than
the product of cold-blooded premeditation); ABA Standard
18-6.5(f) (consecutive sentences should not exceed a total
416                                          Maxfield v. Cain

term reasonably related to the gravity of the offenses). And
finally, competent counsel could have used the information about petitioner’s mental impairments to contextualize petitioner’s problems in the juvenile system, which was
an aggravating fact emphasized by the state at the original
sentencing hearing. Cf. Eddings v. Oklahoma, 

, 

, 

 (1982) (recognizing that “just
as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and
mental and emotional development of a youthful defendant
be duly considered in sentencing”).
         The original sentencing court heard nothing about
petitioner’s childhood difficulties and the impact of his early
drug exposure on his mental health and behavioral regulation. That unpresented mitigation information, combined
with petitioner’s youth and relatively minimal criminal
history up until his month-long spree of robberies, when
weighed against the aggravating circumstances in this
case—petitioner’s five armed robberies where nobody was
ultimately physically injured and petitioner’s poor record in
the juvenile system—creates more than a mere possibility
that counsel’s deficient performance affected the outcome.
        Reversed and remanded with instructions to grant
post-conviction relief on petitioner’s claim that trial counsel was inadequate under Article I, section 11, for failing
to adequately investigate and present mitigation evidence;
otherwise affirmed.