159
Argued and submitted January 5; decision of Court of Appeals reversed in part,
and case remanded to Court of Appeals for further proceedings May 20, 2021
MICHAEL JAMES EVANS,
Petitioner on Review,
v.
Mark NOOTH,
Superintendent,
Snake River Correctional Institution,
Respondent on Review.
(CC 12039338P) (CA A161781) (SC S067383)
487 P3d 42
Petitioner raised a post-conviction claim for inadequate assistance of appellate counsel, arguing that, in a responding document filed in his direct appeal,
counsel should have argued for reversal of all petitioner’s convictions, not only
those related to one victim. The post-conviction court denied relief, and the Court
of Appeals affirmed, but on different grounds. Held: (1) The Court of Appeals
improperly affirmed under the “right for the wrong reason” principle when, had
the alternative basis for affirmance been before the post-conviction court, the
record may have developed in a materially different way; (2) the Court of Appeals
also improperly affirmed under that principle when neither party had any opportunity to develop appropriate arguments below, to respond to that alternative
basis; and (3) remand to the Court of Appeals is therefore appropriate, for consideration of petitioner’s assignment of error as framed by the parties.
The decision of the Court of Appeals is reversed in part, and the case is
remanded to the Court of Appeals for further proceedings.
On review from the Court of Appeals.*
Harrison Latto, Portland, argued the cause and filed the
briefs for petitioner on review.
Erin K. Galli, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also on
the brief were Frederick M. Boss, Deputy Attorney General,
and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Nakamoto, Flynn,
Nelson, and Garrett, Justices, and Landau, Senior Judge,
Justice pro tempore.…
______________
* On appeal from the Malheur County Circuit Court, J. Burdette Pratt,
Senior Judge. 300 Or App 331,
452 P3d 1026 (2019).
… Balmer and Duncan, JJ., did not participate in the consideration or decision of this case.
160 Evans v. Nooth
GARRETT, J.
The decision of the Court of Appeals is reversed in part,
and the case is remanded to the Court of Appeals for further
proceedings.
Cite as 368 Or 159 (2021) 161
GARRETT, J.
In this post-conviction proceeding, petitioner raised
a claim for inadequate assistance of counsel based on the
performance of his appellate counsel, who had represented
him in his direct appeal of multiple sexual-assault convictions. The post-conviction court denied that claim, concluding both that counsel had not acted unreasonably and
that no evidence showed that petitioner had suffered any
prejudice. Petitioner appealed, and the Court of Appeals
affirmed, but on different grounds than those at issue before
the post-conviction court or raised by the parties in their
briefing on appeal. Evans v. Nooth, 300 Or App 331,
452 P3d
1026 (2019). We reverse the Court of Appeals decision and
remand to that court, to resolve the issue framed by the
parties.
The relevant facts are as follows. Petitioner was
charged with sexually assaulting two siblings, A and B. A
had disclosed the abuse first, reporting both that petitioner
had abused her and that she had witnessed him abusing B;
several months later, B also disclosed abuse. At trial, the
state offered testimony from a doctor who diagnosed A with
having been sexually abused, based in part on physical evidence of abuse. Petitioner asked for a hearing under OEC
104, to determine whether that diagnosis was admissible
scientific evidence. The trial court opined that the diagnosis was not scientific evidence, denied petitioner’s request
for hearing, and admitted the doctor’s testimony. A jury
convicted petitioner on eight counts involving A and two
counts—Counts 13 and 14—involving B. The court imposed
concurrent 75-month sentences on the counts related to B,
with a longer set of sentences, several consecutive, on the
counts related to A.
Petitioner appealed. Among other assignments
of error, he challenged the admission of the doctor’s testimony regarding A. The Court of Appeals reversed in part,
citing State v. Southard, 347 Or 127,
218 P3d 104 (2009)
(then recently decided), and concluding that the trial court
had erred in admitting the doctor’s testimony without conducting an OEC 104 hearing. State v. Evans,
236 Or App
467, 470,
236 P3d 848 (Evans I), modified on recons,
238 Or
162 Evans v. Nooth
App 466,
242 P3d 718 (2010) (Evans II); see also Southard,
347 Or at 139, 142 (diagnosis of “sexual abuse” not accompanied by physical evidence of abuse qualified as scientific
evidence, but was not admissible under OEC 403, because it
did not “tell the jury anything that it could not have determined on its own”). The Court of Appeals reversed and
remanded petitioner’s convictions on the counts relating to
A. However, the court’s opinion said nothing about Counts
13 and 14, the counts related to B. Evans I,
236 Or App at
470-71.
The state sought reconsideration, seeking clarification that petitioner’s convictions on Counts 13 and 14 had not
been affected by the errors identified in Evans I. Petitioner’s
appellate counsel filed a response, which is the genesis of
petitioner’s inadequate assistance claim.1 In that response,
counsel wrote that petitioner “agree[d]” that Evans I had
affirmed on Counts 13 and 14, and did “not object to modifying the opinion to make that affirmation express.” The
response further agreed that remand and resentencing on
Counts 13 and 14 were appropriate. The Court of Appeals
allowed reconsideration and modified its disposition to
expressly affirm petitioner’s convictions on Counts 13 and
14. Evans II, 238 Or App 466. On remand, the trial court
dismissed the counts relating to A at the state’s request, but
it also resentenced petitioner to consecutive 75-month sentences on Counts 13 and 14.
Petitioner filed for post-conviction relief, contending
that his appellate counsel’s response on reconsideration of
Evans I had amounted to inadequate assistance. He specifically asserted that counsel should have relied on Southard
to make an argument that, together with other aspects of
the state’s evidence, the doctor’s testimony improperly had
vouched for both A’s and B’s credibility, and had created a
substantial risk of prejudice affecting the jury’s evaluation
of their credibility—such that the error was not harmless as
to Counts 13 and 14, requiring reversal. The superintendent
1
Petitioner raised both state and constitutional claims—inadequate assistance of counsel and ineffective assistance of counsel—to which we refer collectively. See, e.g., Johnson v. Premo, 361 Or 688, 699-700,
399 P3d 431 (2017)
(describing both constitutional standards and noting that they are functionally
equivalent).
Cite as
368 Or 159 (2021) 163
countered that Evans II affirmatively had stated that
Counts 13 and 14 had been “unaffected by the error” in
admitting the doctor’s testimony, 238 Or App at 467—
stated differently, that the error identified in Evans I had
been harmless as to Counts 13 and 14, which in turn showed
that counsel’s response had not prejudiced petitioner. The
superintendent otherwise argued that counsel had acted
reasonably.
The post-conviction court denied petitioner’s claim.
It reasoned that petitioner’s appellate counsel would have
had no basis for making the argument about Southard and
vouching described above because the error identified in
Evans I had involved only the failure to hold an OEC 104
hearing and had not implicated Southard. It followed, the
court concluded, that the underlying reason for reversal in
Evans I of petitioner’s convictions on counts related to A
did not apply to Counts 13 and 14, and so counsel had not
been “ineffective for conceding that [C]ounts 13 and 14 were
affirmed [in Evans I].” The court relatedly concluded that no
evidence showed that appellate counsel’s lack of argument
had prejudiced petitioner.2
Petitioner appealed, renewing his argument that
the doctor’s testimony, coupled with other evidence relating
to A, had been central to the state’s case on Counts 13 and
14, and that a proper argument by his appellate counsel on
reconsideration could have secured reversal of his convictions on those counts. The superintendent, in his answering brief, countered with several reasons why counsel had
acted reasonably in not advocating for reversal and otherwise agreed with the post-conviction court that petitioner
had suffered no prejudice.
The Court of Appeals affirmed, but on different
grounds. Evans, 300 Or App 331. That court first observed
that petitioner had not moved for a directed verdict on his
claim for post-conviction relief below, but the court nonetheless proceeded “as if a motion for directed verdict had
2
Petitioner raised other claims that the post-conviction court denied; the
Court of Appeals affirmed one raised by counsel and another raised by petitioner in a supplemental brief, Evans, 300 Or App at 332, and the others were not
assigned as error on appeal.
164 Evans v. Nooth
been made.”
Id. at 334-35. In that posture, the court then
described the following standard of review: “[W]e determine
whether the facts in evidence, and inferences drawn from
those facts, interpreted in the nonmoving party’s favor, entitled petitioner to a favorable decision as a matter of law.”
Id. at 335. The court next emphasized that petitioner bore
the burden of proving his claim,
id. at 336, and described
the nature of that burden as follows:
“[F]or most claims wherein a post-conviction petitioner
is challenging the tactics employed by counsel, to prevail as a matter of law under a directed verdict standard,
the petitioner must present evidence establishing, either
directly or inferentially, what the objectives of the litigation were. Typically, though not always, that can be provided by statements from counsel or testimony from the
petitioner. But there must be some evidence of the broader
objectives of litigation to be able to accurately assess
counsel’s performance in the context-dependent manner
required.”
Id. at 338. The court then summarily determined that petitioner had “presented no evidence of the objectives of his
appellate litigation[,]” and, thus, the court could not “conclude that the facts in evidence entitled petitioner to a favorable decision as a matter of law.”
Id. at 339.
We allowed petitioner’s petition for review. In their
briefs and oral argument in this court, the parties agree
that the Court of Appeals erred, but for different reasons.
Petitioner argues that that court misstated a post-conviction
petitioner’s burden of proof and argues, instead, for the following presumption: In the absence of contrary evidence,
an instruction to counsel to file an appeal demonstrates a
criminal defendant’s intention to seek the best possible position for further proceedings on remand—as applied here,
a challenge to all convictions, including on Counts 13 and
14. Thus, in petitioner’s view, the Court of Appeals erred
in requiring him to affirmatively “present evidence establishing, either directly or inferentially,” the “objectives of his
appellate litigation.” Id. at 338-39. For his part, the superintendent asserts that the Court of Appeals announced a correct rule of law, but applied that rule incorrectly to the facts.
Specifically, the superintendent disagrees with petitioner’s
Cite as
368 Or 159 (2021) 165
proffered presumption, arguing instead that the Court of
Appeals correctly held petitioner to a standard of demonstrating that he had the objective, expressed to counsel, of
challenging all his convictions on direct appeal. However,
the superintendent acknowledges that the Court of Appeals
overlooked aspects of the record that could have supported
such a finding. For that reason, the superintendent requests
that the case be remanded to that court for further consideration, so that it can correctly apply the principle that it
announced and otherwise determine whether petitioner
proved the elements of his inadequate assistance claim. As
explained below, we do not address the parties’ contentions
regarding the issue framed by the Court of Appeals; instead,
we remand to that court to consider the issue framed by the
parties.
As can be seen, the question before the post-conviction court and framed by the parties on appeal was
whether, in responding to the state’s petition for reconsideration of Evans I, appellate counsel had provided inadequate
assistance in failing to argue that the trial court’s erroneous admission of the doctor’s testimony had required reversal of all convictions, including on Counts 13 and 14. But
the Court of Appeals did not address that question. Instead,
it framed its inquiry in light of a “directed verdict” standard of review that it announced and applied sua sponte.
See generally Green v. Franke, 357 Or 301, 312,
350 P3d
188 (2015) (appellate court reviews merits determination
by post-conviction court for errors of law and is bound by
that court’s factual findings if supported by evidence in the
record; in absence of findings, if evidence supports deciding facts more than one way, appellate court will presume
that post-conviction court decided facts consistently with its
decision); see also generally Peiffer v. Hoyt,
339 Or 649, 654,
659-60,
125 P3d 734 (2005) (rejecting Court of Appeals’ sua
sponte determination that, to preserve an issue for appeal,
a post-conviction petitioner must have moved for directed
verdict or raised a related motion or objection claiming that
the petitioner must prevail as a matter of law; describing
the same standard of review as identified in Green). And,
in applying that standard, the Court of Appeals—again
sua sponte—imposed an evidentiary burden on petitioner to
166 Evans v. Nooth
establish facts concerning the objectives of his earlier appeal
that had not been at issue below.
Without stating as much, the Court of Appeals
in effect affirmed the post-conviction court’s judgment
by invoking the “right for the wrong reason” principle. In
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or
634, 659-60,
20 P3d 180 (2001), this court explained that
an appellate court may affirm a lower court based on that
principle, but only if certain conditions are met. One condition is that, if the question is not purely one of law, then the
record must “materially be the same one that would have
been developed had the prevailing party raised the alternative basis for affirmance below.”
Id. at 659-60; see also State
v. Nascimento,
360 Or 28, 37,
379 P3d 484 (2016) (rejecting state’s proffered alternative basis for affirming denial
of defendant’s motion for judgment of acquittal; prosecutor
had not offered that basis below, and the record “might well
have” been materially different had the prosecutor done so);
see also generally Eklof v. Steward,
360 Or 717, 736,
385
P3d 1074 (2016) (applying principle in reversing Court of
Appeals affirmance of post-conviction summary judgment
in state’s favor; noting that record-development criterion
“is of particular importance where, as here, the opposing
party had no reason to adduce [the] evidence” in light of
applicable summary judgment rules). Here, even assuming
that the Court of Appeals correctly described petitioner’s
evidentiary burden about the objectives of his appeal—as to
which we express no view—petitioner had no reason to offer
evidence of that nature to the post-conviction court. That
question was not before the post-conviction court, and, if
it had been, the record may have developed in a materially
different way. See Outdoor Media Dimensions, Inc.,
331 Or
at 660 (court will not consider alternative basis for affirmance if losing party might have created a different record
below “and that record could affect the disposition of the
issue”).
Perhaps even more significantly, neither party had
any opportunity to develop an argument regarding the
appropriateness of the evidentiary burden that the Court
of Appeals described; the “directed verdict” standard of
review that that court purported to apply; or the application
Cite as 368 Or 159 (2021) 167
of either to evidence in the record.3 See generally Greenwood
Products v. Greenwood Forest Products,
351 Or 604, 620,
273
P3d 116 (2012) (Court of Appeals erroneously reversed trial
court’s denial of motion for directed verdict based on argument not raised below; “[b]ecause the trial court never had
an opportunity to consider the argument, it is not, and was
not, a proper basis for reversing the trial court’s decision”);
Vancil v. Poulson,
236 Or 314, 320-21,
388 P2d 444 (1964)
(“[a]ppellate courts should not decide new issues upon which
the trial court had no opportunity to rule”). For those reasons, we reverse in part the Court of Appeals decision and
remand to that court to consider petitioner’s assignment of
error as framed by the parties before the post-conviction
court and in their Court of Appeals briefing.4
The decision of the Court of Appeals is reversed in
part, and the case is remanded to the Court of Appeals for
further proceedings.
3
For example, in his briefing to this court, the superintendent cites
aspects of the record from which—contrary to the Court of Appeals’ ultimate
determination—the post-conviction court could have found that petitioner had
sought to challenge all his convictions, including on Counts 13 and 14.
4
As noted, petitioner raised another assignment of error, and a supplemental assignment, both of which the Court of Appeals rejected without discussion.
Evans, 300 Or App at 332. The petition for review in this court was limited to the
assignment concerning appellate counsel, and our disposition applies to only that
assignment.
