411
This is a nonprecedential memorandum opinion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 March 22, affirmed April 19, petition for review denied July 20, 2023
(371 Or 308)
NEHEMIAH BEAVERS,
Petitioner-Appellant,
v.
Kimberly HENDRICKS,
Superintendent,
Santiam Correctional Institution,
Defendant-Respondent.
Marion County Circuit Court
20CV19433; A176800
Claudia M. Burton, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kistler, Senior Judge.
TOOKEY, P. J.
Affirmed.
412 Beavers v. Hendricks
TOOKEY, P. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief. In his sole assignment of error,
petitioner challenges the post-conviction court’s rejection
of his claim that his trial counsel was inadequate under
Article I, section 11, of the Oregon Constitution and ineffective under the Sixth and Fourteenth Amendments to the
United States Constitution by failing to move before sentencing to withdraw his guilty plea. Accepting “the post-conviction court’s findings of historical fact if those findings
are supported by the evidence in the record” and reviewing
“the post-conviction court’s denial of relief for legal error,”
Cartrette v. Nooth, 284 Or App 834, 840,
395 P3d 627 (2017),
we affirm.
Claims of inadequate assistance of counsel involve
“a two-pronged inquiry.” Lichau v. Baldwin, 333 Or 350,
359,
39 P3d 851 (2002). To succeed on such a claim under
Oregon law, a petitioner must prove by a preponderance of
the evidence that “[1] his or her trial counsel failed to exercise reasonable professional skill and judgment and that,
[2] because of that failure, the petitioner suffered prejudice.” Pereida-Alba v. Coursey,
356 Or 654, 661-62,
342 P3d
70 (2015). Similarly, “under federal law, a petitioner must
establish that [1] counsel’s performance was deficient and
that [2] the deficient performance prejudiced the defense.”
Id. at 662 (internal quotation marks omitted). The state and
federal standards are “functionally equivalent.” Johnson v.
Premo,
361 Or 688, 699,
399 P3d 431 (2017).
Regarding the first prong, petitioner asserts that
trial counsel was deficient, because “petitioner wanted to
withdraw his plea,” and “counsel’s decision to proceed to sentencing without moving to withdraw petitioner’s plea was
not aligned with petitioner’s interests.” Contrary to that
assertion, however, the post-conviction court found that
petitioner did not ask trial counsel to withdraw his plea and,
further, that petitioner agreed that the plea was a good deal
and wanted to go forward with it. A declaration submitted
by trial counsel, which the post-conviction court found credible, supports that finding.
Nonprecedential Memo Op: 325 Or App 411 (2023) 413
Petitioner also argues that trial counsel was deficient in failing to obtain and review a transcript of an earlier
hearing, asserting that, had counsel done so, she would have
understood that petitioner wanted to withdraw his guilty
plea. But the transcript of that hearing—which was submitted as an exhibit in the post-conviction court—supports the
post-conviction court’s finding that petitioner appeared at
that hearing to request a new attorney and that, when the
trial court asked petitioner at that hearing if he wanted to
withdraw his plea, petitioner responded, “[T]hat’s not what
I’m seeking to do today.”
In view of the foregoing, we conclude that the post-conviction court did not err in determining that petitioner
did not prove that his trial counsel failed to exercise reasonable professional skill and judgment in the manner alleged.
Regarding the second prong, petitioner argues that
he was prejudiced, because trial counsel’s “failure to move
to withdraw his guilty plea could have tended to affect the
verdict.”1 Even assuming for the sake of argument that
trial counsel was deficient in the manner alleged, the post-conviction court determined that petitioner failed to meet
his burden of proving prejudice—i.e., “that there is a reasonable probability that, but for counsel’s errors, the petitioner
would not have pleaded guilty and would have insisted on
going to trial,” Rodriguez-Moreno v. State of Oregon, 208 Or
App 659, 663,
145 P3d 256 (2006), rev den,
343 Or 159 (2007)
(brackets and internal quotation marks omitted)—and the
record is not one that would compel a different conclusion.
Affirmed.
1
We understand petitioner to also assert that he was prejudiced by trial
counsel’s failure to move to withdraw his guilty plea, because his plea lacked a
factual basis. That argument was not adequately preserved in the post-conviction
court, and we therefore do not address it. See Pohlman v. Cain, 312 Or App 676,
680,
493 P3d 1095, rev den,
368 Or 787 (2021) (“[A]s a general rule, arguments not
made to the post-conviction court in support of a claim will not be considered on
appeal.”).
