673
Submitted April 5, 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 present mitigating evidence at sentencing,
otherwise affirmed August 30, 2023
DAVID LAWRENCE BACON,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
19CV25668; A176246
536 P3d 634
Petitioner appeals from a judgment denying his petition for post-conviction
relief (PCR), arguing that his trial counsel rendered inadequate and ineffective
assistance by failing to present mitigating evidence at sentencing. Petitioner
identifies two individuals who were available to testify about his positive contributions to the community for several years until he relapsed into substance
abuse and contends that, had counsel offered that evidence, there is more than
a mere possibility that the sentencing court would not have found substantial
and compelling reasons to deny petitioner eligibility for sentence modification
programs. Held: Trial counsel performed deficiently by failing to present mitigating evidence and, weighing the mitigating evidence against the aggravating
evidence in light of the question before the sentencing court, petitioner was prejudiced thereby.
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 present mitigating evidence at sentencing; otherwise affirmed.
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 Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
674 Bacon v. Cain
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 present
mitigating evidence at sentencing; otherwise affirmed.
Cite as 327 Or App 673 (2023) 675
KAMINS, J.
Petitioner appeals from a judgment denying his
petition for post-conviction relief (PCR), raising two assignments of error. We focus our discussion on petitioner’s second assignment, in which he argues that his trial counsel
was inadequate for failing to present mitigating evidence at
sentencing. We reverse and remand as to the second assignment of error and otherwise affirm.
Petitioner pleaded guilty to three counts of conspiracy to deliver heroin and one count of conspiracy to deliver
methamphetamine and proceeded to open sentencing. At
sentencing, the court considered aggravating factors in
determining the length of petitioner’s sentence and whether
he was eligible for alternative incarceration programming
and earned reductions, including the value and weight of
the drugs involved, petitioner’s extensive criminal history,
and petitioner’s negative impact on the community. Counsel
for petitioner offered only two points in favor of allowing
programming: first, that petitioner was 52 years old, and
second, that those programs offered petitioner the opportunity to treat his drug addiction. Petitioner also made a
brief statement about his recovery, his contributions to the
community, and his relapse. The state did not object to
programming for the second half of petitioner’s sentence.
Nevertheless, the trial court denied petitioner all alternative incarceration programming and earned reductions.
Petitioner appealed, and his appellate counsel filed
a Motion for Entry of Amended Judgment with the trial
court, alerting it to the fact that it had failed to find “on the
record in open court substantial and compelling reasons”
to deny programming, as required by ORS 137.750(1). In
response, the state reminded the trial court of the amount
of drugs involved and objected to “any modification of this
sentence.” The court granted the motion and held a hearing,
which gave trial counsel another opportunity to investigate
and develop the record with additional mitigating evidence.
Despite that opportunity, trial counsel offered no additional
evidence and, instead, relied on her argument from petitioner’s first sentencing hearing. The trial court amended its
676 Bacon v. Cain
judgment reaffirming the denial of petitioner’s eligibility for
all alternative incarceration programming.
Petitioner now seeks post-conviction relief from his
sentence. The PCR court denied relief, finding that petitioner failed to prove that any inadequate assistance of
counsel prejudiced him because “[t]estimony that Petitioner
was doing well but had made a mistake and relapsed would
not have carried any weight with the sentencing judge.”
We review post-conviction proceedings for errors of
law. Hale v. Belleque, 255 Or App 653, 660,
298 P3d 596,
adh’d to on recons,
258 Or App 587,
312 P3d 533, rev den,
354
Or 597 (2013). To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon
Constitution, petitioner must show by a preponderance of
the evidence facts demonstrating that (1) counsel failed to
exercise reasonable professional skill and judgment, and
(2) counsel’s failure had a tendency to affect the result of his
trial. Montez v. Czerniak,
355 Or 1, 7,
322 P3d 487 (2014).
Those standards are “functionally equivalent” to the standards for determining whether counsel was ineffective under
the Sixth and Fourteenth Amendments to the United States
Constitution.
Id. at 6-7; see also Strickland v. Washington,
466 US 668, 694,
104 S Ct 2052,
80 L Ed 2d 674 (1984).
Petitioner argues on appeal that counsel was deficient in failing to present mitigating evidence at sentencing.
In particular, he identifies two individuals who were available to testify on his behalf: Ray Gozly, a former supervisor and employer of petitioner, and Shawn Bower, executive
director of a nonprofit organization that assists individuals
living with drug addictions. Gozly declared that petitioner
graduated from a drug rehabilitation program, mentored
at-risk youth, was attending college, and was starting a business. Gozly also declared that, in his work, petitioner was an
“exceptionally reliable employee,” a “hard worker,” and was
“proficient, reliable, and diligent in doing good work.” Gozly
further declared that petitioner demonstrated compassion
towards others “in a way that was noticeable, memorable,
and consistent.” Bower highlighted that petitioner was a
“regular participant” in support networks, “worked on his
recovery, and did very well for an extended period of time.”
Cite as 327 Or App 673 (2023) 677
Bower also declared that petitioner “has a very strong mind,
and he uses that to support others.” Bower further declared
that petitioner was a “positive impact on society” for several
years until petitioner stopped attending his support group,
a “mistake” Bower said “many people struggling in recovery” make “once they are doing well.” Counsel for petitioner
did not present any evidence from Bower or Gozly for the
court’s consideration at either sentencing hearing.1
We conclude that counsel for petitioner performed
deficiently by failing to offer any mitigating evidence
other than petitioner’s testimony. Petitioner was facing a
228-month sentence, and his case involved several aggravating factors that, alone, weighed in favor of finding substantial and compelling reasons to deny programming.
However, counsel for petitioner called no witnesses and presented no evidence. Even with the opportunity of a second
sentencing hearing, and the knowledge that the trial court
was not persuaded by counsel’s limited argument and would
deviate from the prosecutor’s recommendation to allow programming, trial counsel still did not present any mitigating
evidence. Instead, she relied on a strategy that had already
failed. That choice was not reasonable. See Andrus v. Texas,
___ US ___, 140 S Ct 1875, 1881,
207 L Ed 2d 335 (2020)
(defense counsel provided deficient performance at penalty
phase where counsel performed almost no mitigation investigation and overlooked vast tranches of mitigating evidence);
Montez,
355 Or at 24 (recognizing that “the applicable standard is whether trial counsel exercised reasonable skill and
judgment” and that petitioner’s identification of a different
mitigation strategy “is not a ground for post-conviction relief
if counsel acted reasonably in presenting the defense that
they did”); Pike v. Cain,
303 Or App 624, 636,
465 P3d 277,
rev den,
367 Or 75 (2020) (counsel’s failure to fully investigate mitigating factors, including the petitioner’s military
record, was ineffective assistance).
Turning to prejudice, as an initial matter, the PCR
court erred in concluding that petitioner failed to establish
1
Before the PCR court and on appeal, petitioner’s ineffective assistance of
counsel claim was framed as a challenge to trial counsel’s failure to present mitigating evidence, although it is not clear on this record that trial counsel investigated or was aware of that evidence.
678 Bacon v. Cain
prejudice because the sentencing judge was so focused on
the amount of drugs involved that the additional mitigating
evidence “would not have carried any weight with the sentencing judge.” 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.” Pike, 303 Or App at 636 (internal quotation marks
omitted). Rather, the question is “whether the omitted information is the type that could have affected the outcome if
presented to an objective, reasonable factfinder.”
Id. The
PCR court’s focus on the impact of the omitted evidence on
the particular sentencing judge rather than on an objective
factfinder was in error.
When a case involves a failure to present mitigating evidence at sentencing, we evaluate whether there was
more than a mere possibility that the evidence “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.” Maxfield v.
Cain, 322 Or App 405, 410,
520 P3d 890 (2022) (internal
quotation marks omitted). In making that determination,
“[t]he first step is to determine the precise question before
the sentencing court and the legal standard applicable to
that question.”
Id. Here, that question was whether there
were “substantial and compelling reasons” to deny petitioner eligibility for alternative incarceration programs.
ORS 137.750(1).
We next “look at the totality of the mitigation evidence and reweigh it against the evidence of aggravation”
in order to determine whether there was “more than a mere
possibility that competent defense counsel could have used
the information” in ways that could have persuaded a reasonable factfinder to not find substantial and compelling
reasons to deny programming for petitioner. Maxfield, 322
Or App at 411.
Weighing the mitigating evidence against the
aggravating evidence, there is more than a mere possibility that a reasonable factfinder would have allowed for programming. The aggravating evidence demonstrated that
petitioner was part of a large drug trafficking operation, in
Cite as 327 Or App 673 (2023) 679
terms of the amount of drugs sold, and that petitioner has a
history of former criminal activity and recidivism. However,
the mitigating evidence paints a fuller picture of petitioner’s contributions to society over several years of sobriety
and his success in helping others struggling with addiction,
all while working and attending school. The declarations
of Bower and Gozly evinced (1) petitioner’s participation
in support groups and graduation from a drug rehabilitation program, (2) petitioner’s “noticeable” and “memorable”
mentorship of peers and at-risk youth, (3) petitioner’s pursuit of higher education and goals to start a business, and
(4) petitioner’s “proficient, reliable and diligent” work as an
employee. Competent defense counsel could have used that
information to persuasively argue that additional programming addressing petitioner’s substance abuse would contribute to his sobriety and avoidance of criminal activity which,
in the past, allowed him to make sustained, positive impacts
on his community. As a result, there exists more than a
mere possibility that, but for counsel’s failure, a reasonable
factfinder would not have found substantial and compelling
reasons to deny programming for petitioner.
Because counsel for petitioner was deficient in failing to present any mitigating evidence at petitioner’s sentencing hearing and because that deficiency tended to affect
petitioner’s sentence, we reverse and remand with respect to
petitioner’s second assignment of error.
As to the first assignment of error, petitioner argues
that the PCR court erred when it denied his request for adequate counsel under Church v. Gladden, 244 Or 308,
417
P2d 993 (1966); see also Bogle v. State of Oregon,
363 Or 455,
471,
423 P3d 715 (2018) (explaining the purpose of a Church
motion). That assignment of error is unpreserved, and in any
event, we have reviewed the record and the parties’ arguments,
and we see no error in the court’s application of the law under
Lopez v. Nooth,
287 Or App 731,
403 P3d 484 (2017).
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 present mitigating evidence at sentencing; otherwise
affirmed.
