Benson v. Kelly

                                88

   This is a nonprecedential memorandum opinion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 July 8, affirmed September 28, 2022


                KIETH JAMES BENSON,
                   Petitioner-Appellant,
                             v.
                    Brandon KELLY,
                     Superintendent,
                Oregon State Penitentiary,
                 Defendant-Respondent.
               Marion County Circuit Court
                  17CV46233; A172242


  Dale Penn, Senior Judge.
   Tara Herivel and Law Office of Tara Herivel, LLC, filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  LAGESEN, C. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2022)                               89

           LAGESEN, C. J.
         In accordance with State v. Balfour, 

, 

 (1991), and ORAP 5.90, petitioner appeals a judgment denying his petition for post-conviction relief. In that
petition, petitioner sought relief from his 2015 conviction for
first-degree rape and the life sentence imposed by the sentencing court under ORS 137.719. We review for legal error,
accepting the post-conviction court’s explicit and necessary
implicit factual findings, so long as those findings have evidentiary support. Green v. Franke, 

, 

 (2015). We affirm.1
        ORS 138.640(1) compliance. Petitioner first contends that the post-conviction court’s judgment does not
comply with ORS 138.640(1), as construed by the Supreme
Court in Datt v. Hill, 

, 

 (2010). Our
review of the judgment persuades us otherwise.
          Inadequate assistance of counsel claims. Petitioner
next contends that the post-conviction court erred by rejecting a range of claims that trial counsel was inadequate in
violation of petitioner’s rights under Article I, section 11, of
the Oregon Constitution, and ineffective, in violation of petitioner’s rights under the Sixth and Fourteenth Amendments
to the United States Constitution. See Smith v. Kelly, 

, 

 (2022) (stating legal standards
for inadequate and ineffective assistance of counsel claims
under state and federal constitutions). We address them in
turn.
        Petitioner starts by asserting that trial counsel was
inadequate and ineffective for not giving him an opportunity
to review, and for not discussing with him, a recorded “pretext” phone call and police interview. The post-conviction
court rejected that claim based on its factual finding that
counsel did review the phone call and interview with petitioner before trial. That factual finding is supported by the
record and binds us, precluding a grant of relief on appeal.
   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Yother, 

, 

 (2021) (deciding
matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 

, 

 (2012), rev den, 

 (2013) (same).
90                                              Benson v. Kelly

         Petitioner also asserts that his trial lawyer was
inadequate and ineffective for not adequately advising him
regarding his right to testify and the possibility that he
could be impeached with prior convictions if he did testify.
This contention, too, is foreclosed both by the post-conviction
court’s supported factual finding that trial counsel credibly
testified about the advice she gave petitioner, which included
the content that petitioner claims was omitted, and by the
court’s related finding that petitioner’s contrary testimony
about counsel’s advice was not credible.

         Petitioner next contends that trial counsel was
inadequate and ineffective for failing to object to, or otherwise refute, the prosecutor’s assertion at sentencing that
petitioner had sexually abused multiple victims on thousands of occasions. The prosecutor’s assertions were based
on petitioner’s own admissions during polygraph exams, but
petitioner asserts that he “wildly exaggerated his prior sexual actions in order to pass the polygraphs.” In petitioner’s
view, counsel should have told the trial court at sentencing that petitioner’s polygraph statements had been exaggerations. But, as the post-conviction court concluded, “It
would not help [petitioner] to tell [the] court [petitioner]
lied on treatment polygraphs.” Under those circumstances,
counsel’s omission to inform the court that petitioner’s polygraph statements were not true does not represent a failure
to exercise reasonable professional skill and judgment. See
Smith, 

 (counsel’s performance is constitutionally deficient only if it entails a failure to exercise reasonable professional skill and judgment).

         Petitioner further asserts that trial counsel was
inadequate and ineffective for failing to argue that, in order
to impose the life sentence under ORS 137.719, the fact that
petitioner had been convicted and sentenced for felony sex
crimes twice before had to be pleaded and proved to a jury.
For that argument, petitioner relies on Apprendi v. New
Jersey, 

, 

, 

 (2000),
and Blakely v. Washington, 

, 

, 

 (2004). But both of those cases are explicit that
the fact of a prior conviction need not be pleaded and proved
to a jury before a sentence can be enhanced based on the
Nonprecedential Memo Op: 

 (2022)               91

prior conviction. Apprendi, 

; Blakely, 

. The argument that petitioner proposes that counsel
should have made was, therefore, legally unsound; counsel’s
failure to make it does not represent a failure to exercise
reasonable professional skill and judgment.
          Finally, petitioner makes five additional arguments
as to why his lawyer was inadequate and ineffective: (1) for
failing to sufficiently object to a nonunanimous jury verdict; (2) for failing to object enough during jury selection;
(3) for failing to object to allegedly biased comments by
the prosecutor and judge; (4) for failing to explain that she
allegedly lacked experience needed to perform her duties;
and (5) for failing to prevent the prosecutor from allegedly
harassing petitioner’s witnesses. None of those contentions
is preserved. Additionally, petitioner’s claim that counsel
was ineffective for not challenging the nonunanimous jury
verdict is foreclosed by Smith, 

. There,
we rejected the contention that, in a case tried in 2015—like
this one—counsel was inadequate and ineffective for failing
to argue that nonunanimous jury verdicts were unconstitutional under the Sixth and Fourteenth Amendments, given
the controlling United States Supreme Court case law at the
time.
         Illegal sentence. Petitioner next asserts that the
trial court in his criminal case imposed an illegal sentence.
Under Palmer v. State of Oregon, 

, 

(1994), and ORS 138.550, as construed in Palmer, that claim
of trial court error does not supply a cognizable basis for
post-conviction relief.
         Nonunanimous jury verdict. Finally, petitioner makes
an unpreserved argument that, under Ramos v. Louisiana,

, 

, 

 (2020), his
rape conviction must be set aside because it resulted from a
nonunanimous jury verdict. That assignment of error is not
preserved, and, in all events, it is not plain that the rule in
Ramos applies retroactively in post-conviction proceedings.
That issue is currently before the Oregon Supreme Court on
certified appeal in Huggett v. Kelly, 

, 

(2021) (order accepting certified appeal), and Jones v. Brown,

, 

 (2021) (order accepting certified
92                                          Benson v. Kelly

appeal). The superintendent argues that plain error review
is not available for unpleaded claims in post-conviction proceedings. Because any error is not plain under current law,
we do not address the scope of plain error review in post-conviction proceedings.
        Affirmed.