Snodgrass v. Lampert

150 P.3d 1109, 210 Or. App. 390, 2007 Ore. App. LEXIS 1
CourtCourt of Appeals of Oregon
DecidedJanuary 3, 2007
Docket02-01-1651M; A120690
StatusPublished
Cited by3 cases

This text of 150 P.3d 1109 (Snodgrass v. Lampert) 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
Snodgrass v. Lampert, 150 P.3d 1109, 210 Or. App. 390, 2007 Ore. App. LEXIS 1 (Or. Ct. App. 2007).

Opinion

EDMONDS, P. J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief, ORS 138.530. Petitioner alleges in his petition that his trial counsel was constitutionally inadequate in failing to object to the imposition of consecutive sentences, because petitioner’s convictions arose from one continuous, uninterrupted course of conduct. He raises challenges under both the state and federal constitutions. 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), and affirm.

We describe first the underlying criminal proceedings. An indictment alleged that petitioner committed a series of sex offenses arising out of conduct with a single victim on a single evening. The evidence at trial, viewed in the light most favorable to the state, established that the victim, a disabled person who suffers from mental illness, was petitioner’s client when he was working for the State of Oregon as the branch manager of the Lebanon branch of Senior and Disabled Services Division of the Department of Human Services. Petitioner allowed the victim to live in a camper on his property, and he lived in a trailer nearby. On an evening in January 1996, while in his living room with the victim, petitioner engaged in oral sodomy and sexual abuse by touching the victim’s breasts, and then forced the victim to his bedroom, where he engaged in sexual penetration, attempted rape, and sexual abuse by touching the victim’s vagina.

A ten-count indictment charged petitioner with five sexual offenses based on two separate theories: (1) that petitioner used forcible compulsion; and (2) that the victim was incapable of consenting due to mental defect. After a jury trial, petitioner was convicted of all counts.

At sentencing, petitioner’s counsel requested concurrent sentences. The sentencing court rejected the request and sentenced petitioner as follows: On one count of sodomy in the first degree (Count 1), the trial court imposed an incarceration term of 100 months. Sentences on a second count of sodomy in the first degree (Count 2), and two counts of [393]*393unlawful sexual penetration in the first degree (Counts 3 and 4), were ordered to run concurrently with the first sodomy sentence. On one count of sexual abuse in the first degree (Count 7), the trial court imposed a prison sentence of 75 months to be served consecutively to Counts 1, 2, 3, and 4. Sentences on two counts of attempted rape (Counts 5 and 6), a second count of sexual abuse in the first degree (Count 8), and two counts of sexual abuse in the third degree (Counts 9 and 10), were ordered to run concurrently with the sentence on Count 7. Petitioner’s total period of incarceration based on the above sentences is 175 months. Petitioner did not raise a specific objection at sentencing to the imposition of the consecutive sentencing on Count 7 and the sentences that were ordered to run concurrently with the sentence on Count 7.

Petitioner unsuccessfully appealed from the judgment of convictions, State v. Snodgrass, 169 Or App 653, 10 P3d 336 (2000), rev den, 331 Or 584 (2001), and then sought post-conviction relief, asserting, among other arguments, that his trial counsel’s failure to object to the imposition of consecutive sentences constituted inadequate assistance, because the offenses were part of a continuous, uninterrupted course of conduct. Petitioner argued that the living room and bedroom offenses were a continuous, uninterrupted course of conduct, and that the trial court was therefore required to make findings under ORS 137.123(5)1 before imposing consecutive sentences. Defendant Superintendent [394]*394contended in the post-conviction court that the offenses were “not an uninterrupted course of conduct that would have substantiated an objection to consecutive sentences.” He argued in the alternative that, if the offenses were part of an uninterrupted course of conduct, the evidence was sufficient to support findings under ORS 137.123(5)(b) that would support the imposition of consecutive sentences.

The post-conviction court ruled:

“[T]he record supports [defendant’s] argument * * * that ‘[t]his is not an uninterrupted course of conduct that would have substantiated an objection to consecutive sentences.’ And I further find that [the] claim of inadequate counsel or insufficient counsel under either the State or Federal Constitution lacks merit, and should be denied.”

Petitioner continues to argue on appeal that his trial counsel was inadequate in failing to object to the imposition of consecutive sentences, because the crimes were part of the same uninterrupted course of criminal conduct and findings were required under ORS 137.123(5) before consecutive sentences could be imposed. Defendant no longer takes the position that the offenses were not a part of the same uninterrupted course of criminal conduct. Rather, he now asserts that petitioner did not suffer prejudice by his trial counsel’s failure to object to the imposition of consecutive sentences, because it is unlikely that, if the objection had been made, the trial court would have altered the sentences.

To prevail in a claim for post-conviction relief on the basis of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must show, by a preponderance of the evidence, that his or her counsel did not exercise reasonable professional judgment or skill and that the petitioner suffered prejudice as a result. Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991). To establish ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution, a petitioner must prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s performance prejudiced the defense. Strickland v. Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (test is [395]*395whether, considering all the circumstances, counsel’s assistance was unreasonable and “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”).

We review post-conviction proceedings for errors of law. Chew v. State of Oregon, 121 Or App 474, 855 P2d 1120, rev den, 318 Or 24 (1993). The issues before us are whether the facts found by the post-conviction court are supported by evidence in the record and whether the legal conclusions drawn by the court from those facts are correct. We are bound by the post-conviction court’s findings of fact if they are supported by evidence in the record. If the post-conviction court fails to make express findings and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion made by the court. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).

To establish his post-conviction claim, petitioner was required under Trujillo

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Bluebook (online)
150 P.3d 1109, 210 Or. App. 390, 2007 Ore. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snodgrass-v-lampert-orctapp-2007.