Burdge v. Palmateer

67 P.3d 397, 187 Or. App. 295, 2003 Ore. App. LEXIS 526
CourtCourt of Appeals of Oregon
DecidedApril 17, 2003
Docket97C-12207; A108298
StatusPublished
Cited by7 cases

This text of 67 P.3d 397 (Burdge v. Palmateer) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burdge v. Palmateer, 67 P.3d 397, 187 Or. App. 295, 2003 Ore. App. LEXIS 526 (Or. Ct. App. 2003).

Opinions

[297]*297BREWER, J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. We write only to address petitioner’s claim that his trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635.1 We conclude that petitioner has established that trial counsel’s performance was constitutionally inadequate and that petitioner was prejudiced by that deficiency. Accordingly, we reverse.

Petitioner was convicted in 1994 of five criminal charges in three separate cases. The crimes were committed in the following order: Case No. 1 involved a burglary committed on October 12, 1993; Case No. 2 involved a burglary committed on January 9, 1994; and Case No. 3 involved a burglary and sex offenses committed on January 14, 1994. The cases were not tried in the order that the charged crimes were committed. Petitioner was first tried and convicted in Case No. 2. He was then tried and convicted in Case No. 1. Finally, he was tried and convicted in Case No. 3.

At a consolidated sentencing hearing, the trial court sentenced petitioner in the order in which the crimes were committed. Thus, petitioner was first sentenced in Case No. 1; the trial court then considered petitioner’s conviction in Case No. 1 as supporting imposition of an ORS 137.635 sentence in Case No. 2. Finally, the court relied on petitioner’s convictions in Cases No. 1 and 2 to support the imposition of [298]*298ORS 137.635 sentences in Case No. 3. Petitioner’s trial counsel did not object to the imposition of sentences under ORS 137.635 or assert that ORS 137.635 was inapplicable. On direct appeal, we affirmed the convictions without opinion. State v. Burdge, 137 Or App 437, 904 P2d 1093 (1995).

Thereafter, we decided State v. Allison, 143 Or App 241, 923 P2d 1224, rev den, 324 Or 487 (1996). In Allison, we examined the meaning of the phrase “previously been convicted” as used in ORS 137.635. We explained that, although there were several plausible interpretations of that phrase, the correct interpretation required that ORS 137.635 apply only to a person who has been convicted of one of the enumerated crimes before committing the crime for which the person was to be sentenced under that statute. Id. at 247-56. Under that interpretation, because all of petitioner’s crimes in this case were committed before his first conviction, he was not subject to the imposition of sentences under ORS 137.635 for any of the crimes for which he was eventually convicted. Petitioner sought post-conviction relief, asserting, among other claims, that his trial counsel provided constitutionally inadequate legal assistance by failing to argue that ORS 137.635 did not apply to him. The post-conviction court denied relief.

We review the post-conviction court’s judgment for errors of law and for evidence to support its findings. Smart v. Maass, 148 Or App 431, 434, 939 P2d 1184, rev den, 326 Or 62 (1997). To prevail on a claim of inadequate assistance of counsel, petitioner must establish by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment in representing petitioner in the criminal- proceedings that are the subject of his post-conviction case and that he suffered prejudice as a result of that failure. Stevens v. State of Oregon, 322 Or 101, 108, 902 P2d 1137 (1995); see also Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458 (1981); Chew v. State of Oregon, 121 Or App 474, 477, 855 P2d 1120, rev den, 318 Or 24 (1993).

Petitioner reasserts on appeal that trial counsel was inadequate in failing to object to the imposition of sentences under ORS 137.635. Defendant responds that petitioner’s trial counsel was not inadequate because, at the time of petitioner’s sentencing, no appellate court had interpreted the [299]*299statutory language “previously been convicted.” Accordingly, in defendant’s view, the meaning of the statute was not “clearly settled,” and reasonable counsel could have disagreed about whether to make an argument for the specific interpretation ultimately held to apply in Allison. See Wells v. Peterson, 315 Or 233, 236, 844 P2d 192 (1992). Further, in defendant’s view, petitioner was correctly sentenced based on an understanding of the law at the time of sentencing in light of a then-recent Supreme Court case, State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), and counsel could not have been inadequate for not raising the issue.

In Bucholz, the question was whether, when a person is sentenced at the same time for multiple convictions arising out of different criminal episodes, the offenses first sentenced become a part of the defendant’s criminal history for purposes of the subsequently sentenced convictions. The sentencing guidelines provided that “[a]n offender’s criminal history is based upon the number of * * * convictions * * * in the offender’s criminal history at the time the current crime or crimes of conviction is [sic] sentenced.” The defendant in Bucholz pleaded guilty to two unrelated felonies that had been committed and charged at separate times. He was sentenced for both offenses in the same hearing. The court first sentenced the defendant on the first committed crime. It then determined that, under the sentencing guidelines, the first conviction was a part of the defendant’s criminal history for purposes of sentencing on the second offense. We reversed the sentencing court, holding that “the legislative history demonstrates a legislative intent that convictions sentenced at the same time are present convictions that are not counted in the criminal history, irrespective of rules governing prior criminal history.” State v. Bucholz, 113 Or App 705, 707, 834 P2d 456 (1992) (emphasis in original). The Supreme Court rejected our reasoning that criminal history was not to include convictions that were currently being sentenced. It explained:

“[T]he text of the adopted amendment permits consideration of any previous conviction occurring before ‘the time the current crime * * * is sentenced.’ Read literally, the sentence for the theft was imposed before the sentence for drug [300]*300delivery was imposed, albeit only a short time before.

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Related

Jackson v. Franke
507 P.3d 222 (Oregon Supreme Court, 2022)
Burdge v. Belleque
290 F. App'x 73 (Ninth Circuit, 2008)
Burdge v. Palmateer
112 P.3d 320 (Oregon Supreme Court, 2005)
Williamson v. Schiedler
101 P.3d 364 (Court of Appeals of Oregon, 2004)
Alcazar v. Hill
98 P.3d 1121 (Court of Appeals of Oregon, 2004)
Burdge v. Palmateer
67 P.3d 397 (Court of Appeals of Oregon, 2003)

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Bluebook (online)
67 P.3d 397, 187 Or. App. 295, 2003 Ore. App. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burdge-v-palmateer-orctapp-2003.