State v. Garrett

506                  December 4, 2024               No. 868

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              ETHAN CHASE GARRETT,
                  Defendant-Appellant.
             Washington County Circuit Court
                  C150773CR; A178463

   Erik M. Bucher, Judge.
   Argued and submitted October 6, 2023.
   Bear Wilner-Nugent argued the cause and filed the briefs
for appellant.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Reversed and remanded.
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 (2024)   507
508                                           State v. Garrett

        ORTEGA, P. J.
         In 2015, a jury found defendant guilty of unlawful
use of a weapon, ORS 166.220, unlawful use of a weapon
with a firearm, ORS 161.610, and menacing, ORS 163.190,
and we affirmed those convictions on appeal. State v. Garrett,

, 

 (2018). In 2020, the post-conviction court vacated defendant’s judgment of conviction
and ordered a new trial on the grounds that his trial counsel
provided ineffective assistance in violation of his right to
counsel under the Oregon and United States constitutions.
On remand, defendant entered a conditional guilty plea to
an amended charge of menacing constituting domestic violence, and he reserved his right to challenge on appeal the
trial court’s denial of his motion in limine to exclude inculpatory statements he had made to a Washington County
probation officer during a presentence investigation (PSI)
after his first trial.
         We conclude that defendant has established a minimal factual nexus between a violation of his constitutional
rights (the ineffective assistance of his original trial counsel) and his statements to the PSI investigator. Although the
state argued below that defendant’s statements were attenuated from any constitutional violation, the trial court did
not rule on that issue because it concluded that the statements were not a product of the violation of his right to counsel. We therefore reverse and remand for the trial court to
reconsider its ruling and to address the state’s attenuation
argument in the first instance, should defendant choose to
withdraw his guilty plea and further litigate his motion.
                            FACTS
         The post-conviction court found that defendant’s
original trial counsel had provided ineffective assistance
on several grounds—failure to investigate, failure to object
to inadmissible hearsay testimony, failure to call a specific defense witness, failure to perform constitutionally
adequate closing statements, failure to move for a mistrial
after the state’s midtrial request for a recess to test firearms
evidence, and failure to prepare a sentencing argument for
earned time credits. Defendant did not claim ineffective
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assistance specifically as to the PSI investigation or report,
and the post-conviction court found that defendant had
not proved several claims involving sentencing. As noted,
that court vacated defendant’s judgment of conviction and
remanded for a new trial.
         On remand, defendant moved to exclude the testimony of Bob Severe, the Washington County probation officer who conducted defendant’s PSI, about any statements
defendant made in the course of the PSI or in the PSI report.
Defendant argued that he “would never have had to undergo
a [PSI] if he had not been convicted” and that excluding his
statements was “necessary to effect the judgment of the
post-conviction court vindicating defendant’s rights under
Article I, section 11, of the Oregon Constitution and the
Sixth and Fourteenth Amendments to the United States
Constitution.”
          After Severe testified at a pretrial hearing about his
usual protocol for conducting in-custody PSI interviews at
the jail, the state argued that defendant’s statements should
be admitted because “the [post-conviction] court made specific findings regarding [original trial counsel’s] competency,
and it did not include a finding that he was incompetent in
regards to [ ] defendant making this voluntary statement to
Bob Severe during this PSI investigation.” The state further argued that the statements should be “admissible in
his retrial because the statements were knowingly and voluntarily made.”
         Defendant remonstrated that “the gravamen” of his
argument was that “Oregon courts formulate the remedy
for constitutional violations in criminal cases as putting the
defendant back in the state of affairs he would have been if
the violation had not happened,” that “the issue is simply
that it was a trial process that was infected by inadequate
assistance,” and that the post-conviction court “did find as a
matter of fact and a conclusion of law that that’s why he was
convicted.”
        In response, the state argued that “[i]t’s not a butfor analysis,” that defendant’s PSI statements “are attenuated from any ineffective counsel” by his original trial
510                                                         State v. Garrett

counsel, and that defendant “made the decision, voluntarily
and knowingly, to provide statements to Mr. Severe about
his account of this shooting incident, and because he made
that choice, he lives with the consequences that those statements could later be used against him.”
         The trial court denied defendant’s motion. The
court concluded that defendant had not claimed that his
original trial counsel was ineffective with regard to the PSI,
so “[t]hat was never an issue for the [post-conviction] court,”
and that it was not persuaded that defendant’s original trial
counsel “was constitutionally inadequate in his client participating in the PSI investigation interview” with Severe
because “it could have been a trial strategy” to persuade
Severe to recommend a non-prison sentence.1 The court then
ruled that, “as long as [the statements are] voluntary and
intelligently and knowingly made, they come in” and that
the state had established that defendant voluntarily and
knowingly engaged in the PSI interview with Severe. As
noted, defendant entered a conditional guilty plea, reserving his right to challenge the court’s ruling.
          On appeal, defendant renews his argument that his
statements to Severe were tainted by the constitutional violation resulting from his original trial counsel’s representation. He argues that “[t]he post-conviction court necessarily
concluded that [the constitutional violation] had a tendency
to affect the result of defendant’s original trial” and that, “[w]
ithout that trial outcome, there would have been no presentence investigation and no statements.” It follows, defendant
argues, that the appropriate remedy is to put him “back into
the place where [he was] prior to the constitutional violation.”
                                 ANALYSIS
         We begin with the basic principles underlying post-conviction relief for a violation of the right to effective assistance of counsel under Article I, section 11.2 “Post-conviction
     1
       We note that defendant was subject to a minimum term of imprisonment
under ORS 161.610.
     2
       Although it is undisputed that defendant also obtained post-conviction
relief for violation of his Sixth Amendment right to counsel, we do not address
that provision because the state constitutional claim is sufficient to resolve this
case. See State v. Lowell, 

, 364 P3d (2015) (explaining that the
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relief is warranted when there has been a ‘substantial
denial’ of ‘rights under the Constitution of the United States,
or under the Constitution of the State of Oregon, or both,
and which denial rendered the conviction void.’ ” Lichau v.
Baldwin, 

, 

 (2002) (quoting ORS
138.530(1)(a)). A defendant’s right to counsel under Article I,
section 11, “is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.” Montez v. Czerniak,

, 

, adh’d to as modified on recons, 

, 

 (2014) (internal quotation marks and
citation omitted). A petitioner is entitled to post-conviction
relief when they prove a violation of the Article I, section 11,
right to counsel “by showing that counsel failed to exercise
reasonable professional skill and judgment, and that the
petitioner suffered prejudice as a result of counsel’s inadequacy.” Jackson v. Franke, 

, 

(2022) (internal quotation marks and citation omitted).
          There is no dispute in this case that the post-conviction court found that defendant’s Article I, section 11,
right to counsel was violated in his original trial and that
it granted relief by vacating defendant’s judgment of conviction and ordering a new trial. The post-conviction court’s
judgment granted defendant relief on multiple grounds of
original trial counsel’s ineffective assistance, meaning that
each instance of ineffective assistance constituted “[a] substantial denial in the proceedings resulting in [his] conviction, … of [his] rights … under the Constitution of the
State of Oregon, … and which denial rendered the conviction void.”3 ORS 138.530(1)(a).
          The dispute in this case concerns the scope of such
post-conviction relief, specifically, its effect on the admissibility of evidence on retrial. The parties have pointed to no
controlling authority on that question, and we are aware of
none. In the absence of any directly controlling authority, we
look to analogous cases addressing the applicable analytical
framework and remedy for an Article I, section 11, violation.

“first things first” doctrine ordinarily directs us to resolve state constitutional
law claims before reaching federal law claims).
     3
       The post-conviction court denied defendant’s claim of cumulative error on
the grounds that “Oregon courts do not recognize the cumulative error doctrine.”
512                                            State v. Garrett

         Recently, the Oregon Supreme Court addressed the
remedy for an Article I, section 11, violation that involved
the outright denial of the defendant’s right to counsel during
a critical stage of a criminal proceeding. In State v. Craigen,

, 

 (2023), the defendant’s Article I, section 11, right to counsel was violated when police questioned
him about charges on which he was represented by counsel,
but without counsel present. Addressing the remedy for that
violation, the court explained that, “[u]nder Oregon constitutional law, when the state violates an individual’s constitutional right, the state cannot use evidence obtained as a
result of that violation.” 

 at 711 (citing State v. Jones, 

, 

 (1967)); see also State v. Prieto-Rubio, 

, 

 (2016) (“The remedy for a
violation of Article I, section 11, is the exclusion of any prejudicial evidence obtained as a result of that violation.”).
         The court explained that if the state “violate[s] a
defendant’s state constitutional rights and the defendant
establishes a minimal factual nexus between the violation
and the subsequent discovery of evidence, the evidence must
be suppressed unless the state shows that the evidence did
not result from that violation.” Craigen, 

 (citing
State v. Thompson, 

, 

 (2022)).
“The state can do so by showing one of three things: that the
evidence was discovered through an independent source,
that the evidence would have been inevitably discovered, or
that the discovery of the evidence was so attenuated from
the violation as to dissipate the taint of the unlawful conduct.” 

         We see no reason why that general framework for
remedying an Article I, section 11, violation should not apply
here, where the Article I, section 11, violation was the denial
of defendant’s right to effective assistance of counsel. The
post-conviction court’s judgment granting relief for that violation necessarily implied a legal conclusion that the violation “rendered the conviction void.” ORS 138.530(1)(a). Thus,
defendant’s conviction itself was a product of the Article I,
section 11, violation. And given that it is undisputed that
the PSI would not have occurred but for defendant’s conviction, we readily conclude that defendant has established
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a minimal factual nexus between the Article I, section 11,
violation and his statements to Severe. It follows that defendant’s PSI statements must be excluded unless the state
establishes one of the exceptions to Oregon’s exclusionary
rule.
          In urging a different result, the state argues that
the post-conviction court’s judgment “does not provide lawful basis to exclude defendant’s statements” for two reasons.
First, the state argues that, because defendant did not claim
that his original trial counsel was ineffective specifically as
to advising his participation in the PSI, the post-conviction
court did not find that that aspect of his original trial counsel’s representation constituted a violation of his Article I,
section 11, right to counsel. We reject that argument as
inconsistent with the framework set forth above. Although
we agree that the post-conviction court did not make any
finding of fact or conclusion of law with regard to original
trial counsel’s effectiveness in advising defendant to participate in the PSI, that is not the only path for defendant to
establish a minimal factual nexus between the violation of
his right to counsel and his statements to Severe. In any
event, had defendant raised and established such a claim,
it is not clear that he would have been entitled to more than
resentencing as relief for that claim. See ORS 138.520 (post-conviction relief includes “release, new trial, modification of
sentence, and such other relief as may be proper and just”);
Hinton v. Hill, 

, 

 (2006) (a post-conviction court “has broad authority to fashion a remedy
to correct the actual prejudice suffered by a criminal defendant” (emphasis added)).
         Second, the state argues that the post-conviction
court’s judgment does not order the exclusion of the statements on retrial. Under the framework set forth above, it is
sufficient if the defendant establishes a minimal factual nexus
between the constitutional violation and the evidence sought
to be excluded. Another problem with the state’s argument is
that we have held that such an issue is not one for the post-conviction court but for the trial court on remand. Oatney v.
Kelly, 

, 552, 

 (2017), rev den, 

 (2018) (the post-conviction court did not err in failing
514                                                        State v. Garrett

to include in the judgment provisions excluding certain evidence on retrial because the post-conviction judgment “would
not, and could not, have included a provision on the admissibility of evidence on retrial”); see also id. (“Simply put, the
admissibility of evidence on retrial of the charges against
petitioner was not, and could not have been, a subject of post-conviction relief.”); but see ORS 138.520 (“The relief which a
court may grant or order under ORS 138.510 to 138.680 shall
include release, new trial, modification of sentence, and such
other relief as may be proper and just. The court may also
make supplementary orders to the relief granted, concerning
such matters as rearrangement, retrial, custody and release
on security.” (Footnote omitted; emphases added.)).
          Finally, the state advances several arguments that
we understand to rebut the presumption that defendant’s
statements are tainted by the violation of his Article I, section 11, right to effective assistance of counsel. The state
raised an attenuation argument below, but the trial court
did not reach it after concluding that defendant’s statements
were not a product of the constitutional violation in his first
trial. Although defendant contends that “[t]he state will
never be able to carry its burden to prove attenuation of that
taint[,]” we express no opinion on that issue and instead
leave it to the trial court to address in the first instance
on remand, should defendant choose to withdraw his guilty
plea and further litigate his motion.4
         Because defendant appeals from a judgment convicting him after a conditional guilty plea, we reverse
and remand without determining whether the error was
harmless. State v. Lowell, 

, 

(2015). On remand, defendant may withdraw his plea. ORS
135.335(3).
           Reversed and remanded.

    4
      Defendant alternatively argues that we should apply the rule set forth in
State v. Moore/Coen, 

, 

 (2010), cert den, 

 (2011),
and State v. Dalessio, 

, 

 (2014), in which a defendant’s
original trial testimony is presumed tainted on retrial after a direct appeal
determines that the defendant’s pretrial statements were unlawfully obtained
and should have been suppressed. The state disputes the applicability of those
cases in this procedural posture. Because we have resolved this case on other
grounds, we do not reach those arguments.