Lopez v. Laney

                                   778

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Submitted October 26, affirmed November 23, 2022, petition for review denied
                      February 23, 2023 (

)


                      TYLER LOPEZ,
                    Petitioner-Appellant,
                              v.
                      Garrett LANEY,
                      Superintendent,
            Oregon State Correctional Institution,
                   Defendant-Respondent.
               Umatilla County Circuit Court
                   19CV35204; A174827


  J. Burdette Pratt, Senior Judge.
  Raymond Tindell filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2022)             779

        TOOKEY, P. J.
          Petitioner appeals a judgment denying his petition
for post-conviction relief. On appeal, he raises four assignments of error, contending that the post-conviction court
erred in denying relief, because (1) his trial counsel failed
to ensure his guilty plea was knowing, voluntary, and intelligent; (2) his trial counsel failed to present mitigating evidence; (3) his trial counsel failed to move to suppress certain
statements that petitioner made to police; and (4) his sentence of 513 months’ prison is unconstitutionally disproportionate. We affirm.
         “We review the post-conviction court’s denial of relief
for legal error,” and “we are bound by the post-conviction
court’s findings of historical fact if those findings are supported by the evidence in the record.” Cartrette v. Nooth, 

, 

 (2017).
          Petitioner’s first through third assignments of
error involve claims that his trial counsel was “inadequate”
under Article I, sections 9, 10, 11, 13, and 20, of the Oregon
Constitution and “ineffective” under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.
A petitioner claiming inadequate assistance of counsel
under the Oregon Constitution has the burden “to show, by
a preponderance of the evidence, facts demonstrating that
[1] trial counsel failed to exercise reasonable professional
skill and judgment and that [2] petitioner suffered prejudice
as a result.” Trujillo v. Maass, 

, 

(1991). The standard under the United States Constitution
for assessing whether counsel was constitutionally ineffective is “functionally equivalent.” Montez v. Czerniak, 

, 

 (2014); see also McDonnell v. Premo, 

, 

 (2021), rev den, 

 (2022)
(“[T]he state and federal tests for establishing prejudice are
functionally similar.”).
          In his first assignment of error, petitioner argues
that the post-conviction court erred in denying relief,
because his trial counsel was inadequate and ineffective
for failing to adequately communicate with him, such that
his guilty plea was not knowing, voluntary, and intelligent.
The evidence at the post-conviction hearing—including
780                                           Lopez v. Laney

petitioner’s plea agreement, the trial transcript, and
trial counsel’s deposition testimony—supports the post-conviction court’s findings that petitioner was satisfied with
trial counsel’s work on his case; that petitioner had read and
understood his plea agreement; that he and trial counsel
had discussed the plea agreement “in great detail” and “conferred extensively” about his case and his options; and that
petitioner knew what he was doing when he pleaded guilty.
Additionally, that evidence reflects that, prior to accepting
petitioner’s guilty plea, the trial court assured itself that
petitioner understood the plea agreement, the rights he was
waiving, and the consequences of pleading guilty. Therefore,
the post-conviction court did not err in denying relief on that
claim. See Wilson v. Armenakis, 

, 

 (1996), rev den, 

 (1997) (rejecting post-conviction petitioner’s claim that his plea was not knowing
and voluntary, where post-conviction court found that the
“petitioner executed a plea petition that set out the rights
that he was waiving,” that “trial counsel read the petition
to petitioner before he entered his guilty plea,” and that,
“before accepting the plea, the trial court assured itself that
petitioner’s plea was knowing, voluntary and intelligent”).
         In his second assignment of error, petitioner argues
that the post-conviction court erred in denying relief,
because his trial counsel was constitutionally inadequate for
failing to present mitigation evidence in support of a downward sentencing departure—in particular, a psychosexual
evaluation. In rejecting that claim, the post-conviction court
found that trial counsel had obtained a psychosexual evaluation but that, after discussing it with his trial counsel,
petitioner decided not to submit that evaluation to the trial
court because it was “more harmful than helpful.” The post-conviction court further found that trial counsel had also
obtained and submitted to the trial court several letters
speaking to petitioner’s good character. Those findings are
supported by the deposition testimony of petitioner’s trial
counsel, which the post-conviction court explicitly found to
be credible, and support the post-conviction court’s conclusion that trial counsel had exercised reasonable skill and
judgment. That testimony shows that trial counsel obtained
an “extremely detailed and comprehensive sex offender
Nonprecedential Memo Op: 

 (2022)            781

evaluation” of petitioner; that the evaluation “pretty much
reinforced the idea that [petitioner] was a sexual predator”;
that counsel discussed with petitioner that the evaluation
would likely do more harm than good; and that petitioner
decided to follow counsel’s advice and not use the evaluation.
That testimony further shows that trial counsel obtained
12 letters of support from petitioner’s friends, family, and
coworkers, which discussed petitioner’s good moral character. Thus, the post-conviction court did not err in concluding
that petitioner did not prove trial counsel failed to exercise
reasonable professional skill and judgment regarding mitigation evidence. See Lichau v. Baldwin, 

,

 (2002) (“[T]o be considered an exercise of professional skill and judgment, a lawyer’s tactical decision …
must involve a conscious choice by a lawyer either to take
or to omit some action on the basis of an evaluation of …
the likely costs and potential benefits of the contemplated
action[.]” (Internal quotation marks omitted.)).

          In his third assignment of error, petitioner argues
that the post-conviction court erred in denying relief,
because his trial counsel was inadequate and ineffective
for failing to move to suppress certain statements that petitioner made to police. The testimony from petitioner’s trial
counsel—which, again, the post-conviction court explicitly
found credible—supports the post-conviction court’s finding
that petitioner decided he did not want counsel to file the
motion because he was facing up to 166 years in prison, and
he was aware of the district attorney’s express position that,
if petitioner filed the motion to suppress, the state would
be unwilling to negotiate any plea agreement. The post-conviction court therefore did not err in denying relief on
that claim. Cf. Barnett v. Brown, 

, 

, rev den, 

 (2022) (rejecting post-conviction
petitioner’s claim that trial counsel was inadequate for failing to file motion to suppress, where counsel’s decision was a
strategic decision designed to obtain a better plea offer from
state).

         Finally, in his fourth assignment of error, petitioner argues that the post-conviction court erred in denying relief on his claim that his 513-month prison sentence is
782                                                          Lopez v. Laney

disproportionate as applied to him in violation of Article I,
section 16, of the Oregon Constitution.1
         “The test for determining whether a sentence violates the proportionality provision in Article I, section 16,
is whether the sentence is so disproportionate to the offense
as to shock the moral sense of all reasonable persons as to
what is right and proper.” State v. Thorp, 

, 

 (2000), rev dismissed, 

 (2001).
Three factors bear on that determination: “(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.” State
v. Buckendahl, 

, 

 (2020),
rev den, 

 (2021).
         Considering those factors, petitioner’s sentence is
not one that shocks the moral sense of all reasonable persons. Petitioner was convicted of nine felony offenses for conduct spanning several months and involving eight different
victims, all of whom were under 18 years of age, and some
of whom were under 16 years of age. Petitioner knew the
victims through his trusted role as a coach for local youth
baseball and basketball teams, and the conduct underlying
his convictions included physical sexual contact with the
victims. Petitioner’s offenses included multiple “Measure 11”
offenses, which are subject to mandatory minimum sentences under ORS 137.700 that are comparable to the mandatory sentences provided for other, related offenses in ORS
137.700. The sentences imposed for his other offenses—
which were classified as either crime seriousness category
6 or 8—were comparable to the sentences imposed for other,
related category 6 or 8 offenses. And, although petitioner
had no criminal convictions prior to the criminal case at
issue here, the record indicates that there was “quite a bit
of evidence” of petitioner’s involvement in multiple other
    1
      Petitioner also asserts on appeal that his sentence “constitutes cruel and
unusual punishment prohibited by the 8th Amendment of the US Constitution.”
Because petitioner does not sufficiently develop that argument, we decline to
address it. See Beall Transport Equipment Co. v. Southern Pacific, 

, 700-01 n 2, 

, adh’d to as clarified on recons, 

, 

 (2003) (noting generally that “it is not this court’s function to speculate
as to what a party’s argument might be” or “to make or develop a party’s argument when that party has not endeavored to do so itself”).
Nonprecedential Memo Op: 

 (2022)             783

instances of similar, wrongful conduct—namely, the 28
additional offenses charged in the indictment but later dismissed pursuant to petitioner’s negotiated plea agreement.
See State v. Lara-Vasquez, 

, 

,
rev den, 

 (2021) (“[A] lack of prior convictions alone
has never been found to be enough to render an otherwise
constitutional penalty disproportionate.”); see also State v.
Davidson, 

, 

 (2015), aff’d, 

, 

 (2016) (noting that, for purpose of evaluating whether sentence is unlawfully disproportionate,
criminal history includes “evidence of multiple instances of
uncharged wrongful conduct,” “arrests,” and “unadjudicated
charges”). For those reasons, the post-conviction court did
not err in concluding that petitioner’s sentence would not
shock the conscience of all reasonable persons.
        Affirmed.