782 February 12, 2025 No. 96
This is a nonprecedential memorandum opinion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
THOMAS MARSHALL BENNETT,
Petitioner-Appellant,
v.
Delores MATTEUCCI,
Superintendent,
Oregon State Hospital,
Defendant-Respondent.
Lane County Circuit Court
21CV46603; A181688
Amit K. Kapoor, Judge.
Submitted January 14, 2025.
Jason Weber and Equal Justice Law 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 Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 337 Or App 782 (2025) 783
TOOKEY, P. J.
Petitioner appeals a judgment denying his petition for post-conviction relief, in which he claimed that he
received inadequate and ineffective assistance of counsel
when trial counsel failed to inform him of all of the possible consequences of detention at the Oregon State Hospital
(OSH), prior to agreeing to a stipulated facts trial. In a
combined argument, raising two assignments of error, petitioner contends that the post-conviction court erred in denying him relief, because trial counsel’s failure to provide complete information amounted to deficient performance, and,
had petitioner been aware of that information, he would not
have agreed to a stipulated facts trial. Accepting the post-conviction court’s supported implicit and explicit factual
findings and reviewing for legal error, Green v. Franke, 357
Or 301, 312,
350 P3d 188 (2015), we affirm.
In petitioner’s criminal case, he was indicted for
two counts of first-degree kidnapping, ORS 163.235; two
counts of coercion, ORS 163.275; two counts of menacing,
ORS 163.190; one count of harassment, ORS166.065; and
one count of stalking, ORS 163.732, all constituting domestic violence. Following two psychological evaluations and a
mental health diagnosis, the parties negotiated a stipulation
on which the trial court relied to conduct a stipulated facts
trial, to find petitioner guilty except for insanity (GEI) of
one count of second-degree kidnapping constituting domestic violence, and to sentence petitioner to a maximum of ten
years in the custody of the Psychological Security Review
Board (PSRB).
Petitioner then brought this action seeking post-conviction relief, claiming inadequate and ineffective assistance of counsel. The post-conviction court denied relief on
petitioner’s claims. Petitioner appealed, challenging the
post-conviction court’s judgment with respect to two of those
claims, discussed below.
Because the parties address petitioner’s assignments of error together, we do so as well. In both assignments, petitioner contends that trial counsel was inadequate
and ineffective under the state constitution and the federal
784 Bennett v. Matteucci
constitution “in failing to adequately advise petitioner
regarding the undisputed consequences of his GEI commitment to OSH[.]” To establish inadequate or ineffective assistance of counsel, a petitioner must prove both a performance
element and a prejudice element, by a preponderance of the
evidence. See Smith v. Kelly, 318 Or App 567, 568-69,
508
P3d 77 (2022), rev den,
370 Or 822 (2023) (stating standards
for inadequate and ineffective assistance of counsel under
the state and federal constitutions).
In this case, in petitioner’s view, trial counsel’s performance was deficient because trial counsel should have
informed him (1) “that his criminal history, including a
2003 sexual offense, could be used by OSH and PSRB as
a basis for assessment and treatment recommendations
and requirements and to determine Petitioner’s releasability from OSH custody[;]” and (2) “of the potential collateral
consequences of OSH commitment and being placed under
PSRB jurisdiction[,]” including that petitioner could be
charged for certain boarding and treatment costs and that
his driving privileges could be restricted if he were put on
conditional release. Petitioner further contends that, had he
been fully informed of those consequences, he “would not
have agreed to stipulate to a GEI conviction[.]”1
Even assuming without deciding that trial counsel’s
performance was deficient, petitioner did not prove that, but
for that deficiency, he would not have waived his right to a
jury trial and agreed to a stipulated facts trial. We have
explained “that the appropriate inquiry regarding prejudice in [cases such as this one] is whether [the] petitioner
has proved that, but for counsel’s advice, he would not have
agreed to a stipulated-facts trial.” Koch v. State, 252 Or App
657, 664,
288 P3d 582 (2012).
Here, petitioner asserted in his declaration and
testified at trial that, had he been informed of the above-described consequences of being under PSRB jurisdiction, he
1
In one instance in his opening brief, petitioner argues that, had he known
about the above-described possible consequences, “he would not have agreed to
plead guilty.” Having reviewed the record in the underlying criminal case, we
understand petitioner to have agreed to a stipulated facts trial, and not to have
pleaded guilty. Accordingly, we address petitioner’s arguments as to the former
issue, and not the latter.
Nonprecedential Memo Op: 337 Or App 782 (2025) 785
would not have waived his right to a jury trial or agreed to
a stipulated facts trial. But the post-conviction court found
petitioner not to be credible and determined that “petitioner
has not met his burden to prove that any of the actions
taken, or not taken, by trial counsel resulted in prejudice to
petitioner[.]”2 “Because petitioner’s claims depended on the
court finding, consistently with petitioner’s testimony, that
petitioner would not have agreed to a stipulated-facts trial
had he been properly informed …, the court did not err
in concluding that petitioner failed to sustain his burden of
proof on his claims.” Byers v. Premo,
255 Or App 208, 214,
296 P3d 659, rev den,
353 Or 787 (2013).
Thus, we conclude that the post-conviction court
did not err in determining that any deficiency in trial counsel’s performance did not cause prejudice to petitioner.
Accordingly, we affirm the judgment denying post-conviction
relief.
Affirmed.
2
We further note that the record indicates that the charges in the initial
indictment of petitioner exposed him to a far greater penalty (over 40 years in
custody) than he received as a result of the stipulated facts trial (maximum of 10
years in PSRB custody).
