Venables v. Brown

768                   April 10, 2024               No. 217

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

            SANDRA JOLENE VENABLES,
                  Petitioner-Appellant,
                            v.
                  NICHOLE BROWN,
                    Superintendent,
          Coffee Creek Correctional Institution,
                 Defendant-Respondent.
           Washington County Circuit Court
                  21CV27408; A179628

  Patricia A. Sullivan, Senior Judge.
  Submitted March 12, 2024.
   Jedediah Peterson and O’Connor Weber LLC, filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
  Before Joyce, Presiding Judge, Lagesen, Chief Judge,
and Jacquot, Judge.
  LAGESEN, C. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)                                769

           LAGESEN, C. J.
         Petitioner appeals a judgment denying her petition for post-conviction relief from convictions resulting
from no contest pleas. She argues that her trial counsel
provided constitutionally inadequate and ineffective representation, in violation of the state and federal constitutions.
Petitioner contends that counsel did not properly advise her
about the eligibility requirements to qualify for Short-Term
Transitional Leave (STTL)1 or ensure that her sentence
made her eligible for STTL, and that the post-conviction
court erred in concluding to the contrary. We review the
post-conviction court’s denial of post-conviction relief for
legal error, accepting the court’s supported implicit and
explicit factual findings. Green v. Franke, 

,

 (2015). Reviewing under those standards, we
affirm.
         Petitioner, represented by counsel, pleaded no contest
to three criminal counts in two separate cases in exchange
for the state dropping other charges. Petitioner pleaded
no contest to two counts in the first case and one count in
the second case. At sentencing in the first case, the trial
court sentenced petitioner to the Department of Corrections
(DOC) for 12 months and to the Douglas County Jail for 30
days to run concurrently with the 12 months. In the second case, the trial court sentenced petitioner to DOC custody for 13 months, which was also to run concurrently with
the other sentences. The court noted that petitioner “may
receive credit for time served” and “may be considered …
for any form of Reduction in Sentence[.]”
         Petitioner was placed in DOC custody at Coffee
Creek Correctional Facility. While there, petitioner learned
that her 12-month sentence in the first case caused her to
be ineligible for STTL because the Douglas County Jail had
placed a detainer on her in connection with the 30-day jail
term.
     1
       STTL is a program through which adults in the custody of the DOC are
eligible to transition out of prison and back into the community up to 120 days
before their discharge date if they meet certain criteria. ORS 421.168(1), (4); OAR
291-063-0100; OAR 291-063-0120. Among those criteria is a requirement that the
individual not have “a current detainer or other charges that would result in incarceration upon release to short-term transitional leave.” OAR 291-063-0120(2)(d).
770                                         Venables v. Brown

         Petitioner then initiated the instant post-conviction
proceedings. She argued that her trial counsel failed to
exercise reasonable professional skill and judgment because
counsel failed to advise her that the 30-day jail sentence
would make her ineligible for STTL, which according to
petitioner, means her pleas were not knowing, intelligent,
and voluntary. Had counsel recognized the issue, petitioner
asserted that she would have exercised her right to a jury
trial. Alternatively, petitioner contends that, if counsel had
recognized the issue, she would have requested that the
state amend her plea deal to include 13-month concurrent
sentences in both cases so that she would be eligible for
STTL.
          The post-conviction court denied relief. The court
determined that trial counsel did not perform deficiently.
The court also determined that petitioner did not show
prejudice because her plea was not conditioned on receiving early release, and because it found her not credible in
her assertion that she would have gone to trial had counsel provided different advice in light of the state dismissing
several other charges of criminal conduct. The court did not
expressly address petitioner’s contention that, absent counsel’s alleged deficiency, petitioner would have been able to
obtain a different sentence structure that made her eligible for STTL. Petitioner appeals the post-conviction court’s
judgment and renews her arguments made to that court.
         The standards for post-conviction relief under both
the state and federal constitutions are “functionally equivalent”: A petitioner must show that defense counsel performed deficiently, and that the petitioner suffered prejudice
as a result of the deficient representation. Smith v. Kelly,

, 

 (2022). To prove prejudice where, as here, a petitioner alleges that counsel’s inadequate advice affected the petitioner’s decision to plead no
contest, the petitioner must establish by a preponderance of
the evidence that, but for counsel’s deficient advice, the petitioner would have rejected the plea deal and insisted on a
trial. Newmann v. Highberger, 

, 

 (2024); Cox v. Howton, 

, 

 (2015). Where a post-conviction court makes findings
Nonprecedential Memo Op: 

 (2024)                           771

on a party’s credibility, those findings bind us on appeal.
Newmann, 

-35 (citing State v. Johnson,

, 

 (2003)).
         We affirm because, even if counsel performed deficiently with respect to the STTL issue, the trial court properly determined that petitioner failed to demonstrate that
the alleged deficiency prejudicially affected her decision to
plead no contest. Newmann, 

; Strickland
v. Washington, 

, 

, 

 (1984) (courts do not need to analyze counsel’s performance if the petitioner does not show prejudice). Further,
to the extent petitioner asserts that counsel’s alleged deficiency prejudicially affected sentencing, petitioner’s claim is
moot.
         Specifically, petitioner asserts that she was prejudiced in two ways. First, she claims counsel’s advice caused
her to accept a plea deal that she would have otherwise
rejected. Second, she claims that the advice caused her to
receive a sentence that made her ineligible for STTL.
         As to the first form of prejudice, the post-conviction
court found petitioner not credible in her assertion that
she would have rejected the plea deal had counsel provided
different advice. We are bound by that credibility finding.
Newmann, 

. Given that finding, the
post-conviction court properly concluded that petitioner did
not show she would have gone to trial and rejected the plea
deal had counsel performed differently.
         As to petitioner’s claim that counsel’s alleged deficiency prejudicially affected sentencing by depriving her
of eligibility for STTL, petitioner is now out of custody,
having ultimately been granted STTL,2 and the superintendent argues that the claim is therefore moot because
resolution of it can have no practical effect on petitioner’s
rights. Petitioner has not disputed that proposition. Under
the circumstances, we are persuaded that the claim is moot
and do not reach it for that reason. See State v. K. J. B.,

, 

 (2018) (discussing framework

    2
      The superintendent provided the court with DOC documentation showing
that petitioner was released on STTL. Petitioner has not disputed the document.
772                                      Venables v. Brown

for determining whether appellate issue is moot; explaining that issue becomes moot “when a court’s decision will no
longer have a practical effect on the rights of the parties”)
(internal quotation marks omitted); see also Dept. of Human
Services v. T .J. N., 

, 657-58, 

 (2023)
(discussing framework for determining whether appellate
issue is moot).
        Affirmed.