Green v. Cain

                                   541

   This is a nonprecedential memorandum opinion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 February 9, affirmed March 8, petition for review denied May 18,
                             2023 (

)


                    MICHAEL GREEN,
                  nka Michael Sean Green,
                    Petitioner-Appellant,
                              v.
                         Brad CAIN,
                      Superintendent,
             Snake River Correctional Institution,
                   Defendant-Respondent.
                Malheur County Circuit Court
                    18CV53422; A175568


  J. Burdette Pratt, Senior Judge.
   Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
542                                              Green v. Cain

         TOOKEY, P. J.
         Petitioner appeals a judgment denying his petition
for post-conviction relief. In a single assignment of error, he
asserts that the post-conviction court erred when it “denied
relief on petitioner’s first claim.” For the reasons explained
below, we affirm.
         Petitioner was charged with multiple sexual offenses
committed against his daughter, B, and, in a separate
charging instrument, charged with multiple sexual offenses
committed against his other daughter, C. The state moved
to consolidate the charges in the two cases, and trial counsel argued against consolidation on the basis that it would
create a “substantial risk of prejudice” to petitioner. The
trial court rejected that argument and ordered the charges
consolidated.
         In his petition for post-conviction relief, petitioner
alleged that his trial counsel rendered inadequate assistance under Article I, section 11, of the Oregon Constitution
and ineffective assistance under the Sixth and Fourteenth
Amendments to the United States Constitution. In his first
claim for relief, petitioner asserted that trial counsel was
inadequate and ineffective in failing to file a motion to sever
trial of the charges involving B from those involving C.
Petitioner argues trial counsel should have done so pursuant to ORS 132.560(3), which provides that, if it “appears
upon motion, that the state or defendant is substantially
prejudiced by a joinder of offenses …, the court may order
an election or separate trials of counts or provide whatever
other relief justice requires.” Petitioner notes that trial counsel did argue against consolidation, but he asserts that trial
counsel did not do so “under the proper subsection of ORS
132.560.” The post-conviction court denied relief on that
claim, determining that trial counsel was not deficient and,
in any event, that petitioner had not established prejudice.
         Accepting “the post-conviction court’s findings of
historical fact if those findings are supported by the evidence in the record,” and “review[ing] the post-conviction
court’s denial of relief for legal error,” Cartrette v. Nooth,

, 

 (2017), we conclude that
the post-conviction court did not err in determining that
Nonprecedential Memo Op: 

 (2023)            543

petitioner had not met his burden to establish that trial
counsel was deficient and establish prejudice: Trial counsel
argued against consolidation on the basis that consolidation
would “create[ ] a substantial risk of prejudice against [petitioner],” and petitioner has not demonstrated that a separate motion to sever charges pursuant to ORS 132.560(3)
after consolidation would have been successful. See Mandell
v. Cain, 

, 

 (2021), rev den,

 (2022) (“[B]ecause the testimony was not vouching testimony, trial counsel did not perform deficiently when
he did not raise a vouching objection, and petitioner was
not prejudiced by the lack of a vouching objection because it
would not have succeeded.”). Consequently, we conclude that
the post-conviction court did not err in rejecting petitioner’s
first post-conviction claim, and we affirm.
        Affirmed.