Dasher v. Brown

                                 129

   This is a nonprecedential memorandum opinion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 August 8, affirmed September 13, 2023,
         petition for review denied March 7, 2024 (

)


                 DIXIE LEA DASHER,
                  Petitioner-Appellant,
                            v.
                    Nichole BROWN,
                    Superintendent,
          Coffee Creek Correctional Institution,
                 Defendant-Respondent.
           Washington County Circuit Court
                  20CV19279; A177450


  Patricia A. Sullivan, Judge.
   Margaret Huntington and O’Connor Weber LLC filed the
briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before Lagesen, Chief Judge, and Kamins, Judge, and
Kistler, Senior Judge.
  LAGESEN, C. J.
  Affirmed.
130                                          Dasher v. Brown

        LAGESEN, C. J.
         Petitioner appeals a judgment denying her petition
for post-conviction relief from her 2019 convictions, following a bench trial, for second-degree assault, failure to perform the duties of a driver to injured persons, and unauthorized use of a motor vehicle. On appeal, we accept the
post-conviction court’s supported implicit and explicit factual findings and review for legal error. Green v. Franke, 

, 

 (2015). Applying that standard of
review, we affirm.
         Petitioner’s convictions arose from an incident in
which she intervened in an argument between the victim
and a woman; petitioner believed the victim was beating
the woman. Ultimately, petitioner drove her car at the victim, striking him. Petitioner’s case went to trial in the summer of 2019; petitioner waived her right to a jury trial and
was tried by the court, which found petitioner guilty of the
offenses listed above, and acquitted her on two other charges.
Petitioner then initiated this post-conviction proceeding.
         Pertinent to the issues on appeal, petitioner alleges
that trial counsel rendered inadequate and ineffective
assistance of counsel, in violation of Article I, section 11, of
the Oregon Constitution, and the Sixth Amendment to the
United States Constitution, in two respects. See Smith v.
Kelly, 

, 

 (2022), rev den,

 (2023) (stating standards for inadequate and
ineffective assistance of counsel claims under the state
and federal constitutions). First, with respect to the assault
charge, petitioner asserts that trial counsel was inadequate
and ineffective for raising self-defense, along with a defense
that there was insufficient evidence of the requisite culpable mental state. Second, she asserts that trial counsel
was inadequate for not advising her that a jury might be
required to reach a unanimous verdict before she waived
her right to a jury trial, given that at the time of her waiver,
the Supreme Court had granted the petition for certiorari in
Ramos v. Louisiana, 

, 

, 

 (2020), to consider whether to overrule Apodaca v.
Oregon, 

, 

, 

 (1972).
Nonprecedential Memo Op: 

 (2023)                           131

         We affirm the denial of relief on petitioner’s first
claim because the post-conviction court found that trial
counsel’s approach accorded with petitioner’s wishes, even
though counsel had advised otherwise. As we have held, it
is reasonable for counsel to carry out a client’s tactical decisions. Nichols v. Persson, 

, 

(2020), rev den, 

 (2021).

         As for petitioner’s second claim, given the timing
of petitioner’s criminal case, we assume without deciding
that counsel performed deficiently by not advising petitioner
regarding the potential that Ramos would change the law
regarding jury unanimity. See Aaron v. Kelly, 

, 

 (2023) (recognizing that there may
be instances in which “a lawyer exercising reasonable professional skill and judgment may be expected to anticipate an imminent departure from stare decisis—for example, after a high court has allowed review to address the
question of whether to overrule precedent”). We nevertheless affirm the denial of relief on petitioner’s second claim
because the post-conviction court’s factual findings preclude
a conclusion that petitioner was prejudiced by any deficiency
in counsel’s performance. The post-conviction court found
that even if counsel had advised petitioner regarding the
possibility that a jury might be required to reach a unanimous verdict should the Supreme Court change course in
Ramos, petitioner was “not credible that but for Counsel’s
advice regarding non-unanimous juries, she would have
elected to go to trial with a jury.” The court also found trial
counsel credible “in his assertion that Petitioner wanted a
bench trial, and initiated discussion with him on this point.”
Those findings mean that any deficiency in counsel’s advice
did not prejudice petitioner, because they preclude the conclusion that different advice would have caused petitioner to
make a different decision about whether to waive jury. See
Green, 

 n 13 (explaining prejudice standard
applicable to claim that trial counsel’s deficient performance
affected a petitioner’s decisions).1

    1
      The parties appear to dispute the applicable standard for prejudice on
petitioner’s jury waiver claim. We read Green as identifying the standard that
applies in this context.
132                                       Dasher v. Brown

         Although petitioner argues that the post-conviction
court’s allegedly erroneous assessment of the performance
element of his claim affected its credibility determinations
such that we should not view them as binding, we are not
persuaded by that argument on this record. Accordingly, the
post-conviction court properly denied relief on petitioner’s
Ramos-based claim.
        Affirmed.