Molette v. Nooth

421 P.3d 379, 291 Or. App. 426
CourtCourt of Appeals of Oregon
DecidedApril 18, 2018
DocketA158692
StatusPublished
Cited by1 cases

This text of 421 P.3d 379 (Molette v. Nooth) 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
Molette v. Nooth, 421 P.3d 379, 291 Or. App. 426 (Or. Ct. App. 2018).

Opinion

JAMES, J.

*427*381Petitioner appeals a judgment denying his petition for post-conviction relief. Petitioner was convicted of second-degree sex abuse, ORS 163.425, and sentenced to life in prison under Oregon's repeat sex offender sentencing statute, ORS 137.719, which states, in part:

"(1) The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.
"*****
"(3) For purposes of this section:
"(a) Sentences for two or more convictions that are imposed in the same sentencing proceeding are considered to be one sentence; and
"(b) A prior sentence includes:
"(A) Sentences imposed before, on or after July 31, 2001; and
"(B) Sentences imposed by any other state or federal court for comparable offenses."

On appeal, petitioner raises two assignments of error. We write to address only petitioner's first assignment, rejecting his second without discussion. Petitioner assigns error to the post-conviction court's denial of relief on his claim that trial counsel was inadequate and ineffective in failing to object to the court's imposition of a lifetime sentence under ORS 137.719 because the statutory predicates for such a sentence were absent. Specifically, petitioner argues that his two prior Texas adjudications were not "sentences" under the meaning of ORS 137.719. On review, we determine that trial counsel's performance was constitutionally inadequate and ineffective, and that counsel's deficiency prejudiced petitioner. Accordingly, we reverse the decision of the post-conviction court.

*428The facts surrounding petitioner's conviction and sentence were set forth in our opinion from the direct appeal:

"In 2010, [petitioner], following a jury trial, was convicted of second-degree sexual abuse for knowingly subjecting an 18-year-old female to sexual intercourse without her consent. After finding [petitioner] guilty, the jury considered additional questions during the penalty phase, and the jury returned a special sentencing verdict, finding that (1) [petitioner] had prior felony convictions for indecency with a child and sexual assault; (2) prior criminal sanctions had not deterred [petitioner]; (3) [petitioner] had been persistently involved in similar criminal activity; and (4) incarceration was necessary for public safety.
"At sentencing, the state asked the court to impose the presumptive sentence of life imprisonment without the possibility of release or parole under ORS 137.719, which requires proof that [petitioner] had been sentenced for at least two prior felony sex crimes. The state offered into evidence certified copies of [petitioner]'s convictions for two prior felony sex crimes in Texas. [Petitioner] did not object to the exhibits. The exhibits established that, in 199[6], [petitioner] was convicted of indecency with a child for having sexual intercourse with a child under the age of 14. In 1997, he was convicted of sexual assault for forcibly having sexual intercourse with a woman. In each case, the court entered an 'Unadjudicated Judgment on Plea of Guilty or Nolo Contendere and Suspending Imposition of Sentence.' Both judgments accepted [petitioner]'s guilty pleas and concluded that the evidence in the record substantiated his guilt. Each judgment suspended the imposition of sentence and placed [petitioner] on probation. [Petitioner] received eight years of probation for the 199[6] conviction and five years of probation for the 1997 conviction. After [petitioner] completed each term of probation, the convictions were dismissed."

State v. Molette , 255 Or. App. 29, 30-31, 296 P.3d 594, rev. den. , 353 Or. 788, 304 P.3d 467 (2013).

*382The court imposed the presumptive sentence of life imprisonment without the possibility of parole. On direct appeal, we affirmed the petitioner's conviction and sentence, noting that petitioner's argument that he was not subject to the presumptive sentence under ORS 137.719(1) because the *429Texas adjudications were not sentences was unpreserved. Molette , 255 Or. App. 29, 296 P.3d 594. We concluded that "[a]t a minimum, based on the state's arguments, it is reasonably disputed whether there was any error. Because it is defendant's task to establish that the point of law is obvious, and defendant failed to establish that, defendant's argument does not qualify as plain error." Id . at 35, 296 P.3d 594.

Petitioner filed a petition for post-conviction relief in 2014 and an amended petition later that same year. In his amended petition, petitioner argued that his

"sentence of imprisonment and post-prison supervision was and is illegal. The proceedings giving rise to the sentence resulted in a substantial denial of Petitioner's rights in violation of ORS 138.530. Petitioner was prejudiced in that he was denied adequate assistance of counsel, under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Section 11, of the Oregon Constitution, because trial counsel failed to exercise reasonable professional skill and judgment in the following areas:

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Bluebook (online)
421 P.3d 379, 291 Or. App. 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molette-v-nooth-orctapp-2018.