[433]*433GRABER, J.
We allowed limited review in this post-conviction case to decide whether petitioner received adequate assistance of counsel at trial.1 The post-conviction court concluded that petitioner received adequate assistance of counsel and dismissed his petition. The Court of Appeals affirmed without opinion. Trujillo v. Maass, 106 Or App 427, 809 P2d 134 (1991). We also affirm.
Early on the morning of August 3,1986, petitioner entered a restaurant where two police officers were eating. He approached their table, laid down a gun, and said in an excited voice, “I killed her; she is all gray, she is dead, she is all gray.” The officers handcuffed petitioner and put him in their police car. He told them where he lived and gave them keys to enter his home. There, the officers found the body of petitioner’s live-in companion on the couch. She had been shot in the head.
The officers arrested petitioner. He was charged with murder. ORS 163.115.2 The penalty for murder is a required sentence of life imprisonment, including a 10-year minimum without the possibility of parole. ORS 163.115(3)(a) and (b). Additionally, the sentencing court may, in its discretion, order that a defendant serve an additional 15 years without the possibility of parole. ORS 163.115(3)(c). Those minimum terms can be set aside only by the unanimous vote of the Board of Parole. ORS 163.115(3)(d).
Petitioner did not deny that he had killed the victim. His defense was that he had killed her accidentally. He explained that the couple typically had sexual relations while the victim was tied up; petitioner would whip her and place an unloaded gun to her head. He maintained that, at the time of the killing, he thought that the gun was unloaded or broken, [434]*434and he was “beginning to be involved in this mutually acceptable sexual play when the weapon discharged.”
Petitioner entered into a plea agreement. He pleaded guilty to manslaughter in the first degree, ORS 163.118,3 committed with a firearm, a Class A felony, for which the maximum term of imprisonment is 20 years, ORS 161.605(1). In exchange for the guilty plea, the state agreed to recommend a five-year minimum sentence.
Despite the state’s recommendation, the trial court imposed a 20-year sentence with a 10-year minimum under ORS 144.110GL).4 The trial court also imposed a five-year minimum for using a firearm, ORS 161.610(4)(a),5 with the sentences to be served concurrently.
This post-conviction proceeding followed, as provided by ORS 138.510 to 138.680. Petitioner claims that his counsel represented him inadequately at trial, in several respects.
This court has stated that the issue in a post-conviction case involving adequacy of trial counsel is whether the petitioner received “an adequate performance by counsel of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf.” [435]*435Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458 (1981).
“[C]ounsel’s functions include informing the defendant, in a manner and to the extent appropriate to the circumstances and to the defendant’s level of understanding, of the existence and consequences of nontactical choices which are the defendant’s to make, so as to assure that the defendant makes such choices intelligently. This function of counsel is particularly important when a defendant is called upon to waive fundamental rights, as by a guilty plea or waiver of jury trial.” Id. at 874-75 (citation omitted).
The burden is on petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. OR8138.620(2) ;6 see also ORS 138.530(l)(a) (post-conviction relief shall be granted when petitioner establishes a “substantial denial” of petitioner’s constitutional rights in the proceedings resulting in the conviction, and that denial rendered the conviction void); Krummacher v. Gierloff, supra, 290 Or at 874-75, 883 (“The search for a single, succinctly-stated standard, objectively applicable to every case, is a fool’s errand,” but “[t]he right of a defendant to be heard by counsel requires at least that counsel advocate the defense with professional skill and judgment. * * * [0]nly those acts or omissions by counsel which have a tendency to affect the result of the prosecution can be regarded as of constitutional magnitude”).
In this instance, the post-conviction court determined that petitioner received adequate assistance of trial counsel. We have reviewed all of petitioner’s claims of inadequate assistance. Only one merits discussion. Petitioner alleged that his trial counsel was inadequate for failing “to submit the tentative plea agreement to the Judge for the purpose of getting the Judge to concur in the proposed disposition at the time of sentencing pursuant to ORS [436]*436135.432.”7 Petitioner also alleged that he was denied “his rights under ORS 135.432 by reason of the failure of * * * defense counsel to advise Petitioner that his plea agreement was not binding upon the Judge.” Under ORS 135.432, at the parties’ request, the trial judge may advise them whether the judge will concur in the proposed disposition of the case under a tentative plea agreement. If the judge changes his or her mind after so advising the parties, the defendant must be informed and may then affirm or withdraw the plea.
The record shows that petitioner and the prosecution reached a plea agreement “which contemplate^] entry of a plea of guilty * * * in the expectation that charge or sentence concessions [would] be granted.” ORS 135.432(2). The state concedes that petitioner’s trial counsel did not request the trial judge to proceed under ORS 135.432. That omission is unexplained in the record.
Free access — add to your briefcase to read the full text and ask questions with AI
[433]*433GRABER, J.
We allowed limited review in this post-conviction case to decide whether petitioner received adequate assistance of counsel at trial.1 The post-conviction court concluded that petitioner received adequate assistance of counsel and dismissed his petition. The Court of Appeals affirmed without opinion. Trujillo v. Maass, 106 Or App 427, 809 P2d 134 (1991). We also affirm.
Early on the morning of August 3,1986, petitioner entered a restaurant where two police officers were eating. He approached their table, laid down a gun, and said in an excited voice, “I killed her; she is all gray, she is dead, she is all gray.” The officers handcuffed petitioner and put him in their police car. He told them where he lived and gave them keys to enter his home. There, the officers found the body of petitioner’s live-in companion on the couch. She had been shot in the head.
The officers arrested petitioner. He was charged with murder. ORS 163.115.2 The penalty for murder is a required sentence of life imprisonment, including a 10-year minimum without the possibility of parole. ORS 163.115(3)(a) and (b). Additionally, the sentencing court may, in its discretion, order that a defendant serve an additional 15 years without the possibility of parole. ORS 163.115(3)(c). Those minimum terms can be set aside only by the unanimous vote of the Board of Parole. ORS 163.115(3)(d).
Petitioner did not deny that he had killed the victim. His defense was that he had killed her accidentally. He explained that the couple typically had sexual relations while the victim was tied up; petitioner would whip her and place an unloaded gun to her head. He maintained that, at the time of the killing, he thought that the gun was unloaded or broken, [434]*434and he was “beginning to be involved in this mutually acceptable sexual play when the weapon discharged.”
Petitioner entered into a plea agreement. He pleaded guilty to manslaughter in the first degree, ORS 163.118,3 committed with a firearm, a Class A felony, for which the maximum term of imprisonment is 20 years, ORS 161.605(1). In exchange for the guilty plea, the state agreed to recommend a five-year minimum sentence.
Despite the state’s recommendation, the trial court imposed a 20-year sentence with a 10-year minimum under ORS 144.110GL).4 The trial court also imposed a five-year minimum for using a firearm, ORS 161.610(4)(a),5 with the sentences to be served concurrently.
This post-conviction proceeding followed, as provided by ORS 138.510 to 138.680. Petitioner claims that his counsel represented him inadequately at trial, in several respects.
This court has stated that the issue in a post-conviction case involving adequacy of trial counsel is whether the petitioner received “an adequate performance by counsel of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf.” [435]*435Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458 (1981).
“[C]ounsel’s functions include informing the defendant, in a manner and to the extent appropriate to the circumstances and to the defendant’s level of understanding, of the existence and consequences of nontactical choices which are the defendant’s to make, so as to assure that the defendant makes such choices intelligently. This function of counsel is particularly important when a defendant is called upon to waive fundamental rights, as by a guilty plea or waiver of jury trial.” Id. at 874-75 (citation omitted).
The burden is on petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. OR8138.620(2) ;6 see also ORS 138.530(l)(a) (post-conviction relief shall be granted when petitioner establishes a “substantial denial” of petitioner’s constitutional rights in the proceedings resulting in the conviction, and that denial rendered the conviction void); Krummacher v. Gierloff, supra, 290 Or at 874-75, 883 (“The search for a single, succinctly-stated standard, objectively applicable to every case, is a fool’s errand,” but “[t]he right of a defendant to be heard by counsel requires at least that counsel advocate the defense with professional skill and judgment. * * * [0]nly those acts or omissions by counsel which have a tendency to affect the result of the prosecution can be regarded as of constitutional magnitude”).
In this instance, the post-conviction court determined that petitioner received adequate assistance of trial counsel. We have reviewed all of petitioner’s claims of inadequate assistance. Only one merits discussion. Petitioner alleged that his trial counsel was inadequate for failing “to submit the tentative plea agreement to the Judge for the purpose of getting the Judge to concur in the proposed disposition at the time of sentencing pursuant to ORS [436]*436135.432.”7 Petitioner also alleged that he was denied “his rights under ORS 135.432 by reason of the failure of * * * defense counsel to advise Petitioner that his plea agreement was not binding upon the Judge.” Under ORS 135.432, at the parties’ request, the trial judge may advise them whether the judge will concur in the proposed disposition of the case under a tentative plea agreement. If the judge changes his or her mind after so advising the parties, the defendant must be informed and may then affirm or withdraw the plea.
The record shows that petitioner and the prosecution reached a plea agreement “which contemplate^] entry of a plea of guilty * * * in the expectation that charge or sentence concessions [would] be granted.” ORS 135.432(2). The state concedes that petitioner’s trial counsel did not request the trial judge to proceed under ORS 135.432. That omission is unexplained in the record. Petitioner argues that the unexplained omission constitutes inadequate assistance of counsel and that he was prejudiced, because knowing whether the trial judge would have concurred in the proposed disposition was important to deciding whether to enter into the plea agreement. At oral argument, it was further argued that petitioner would have obtained important strategic information even if the process had not resulted in knowing the judge’s view of the proposed disposition. Petitioner contended that the decision of the prosecutor whether to agree to this procedure and, if so, the decision of the trial judge whether to advise the parties at all of the court’s view are potentially important to a defendant’s ultimate acceptance of the plea agreement.
As a threshold matter, we agree that counsel should advise a defendant who is contemplating a plea agreement of the availability of the procedure provided in ORS 135.432. The facts that a plea agreement was made and that petitioner’s counsel apparently failed to pursue the procedure established in ORS 135.432 trigger an inquiry into the adequacy of trial counsel and the potential for prejudice to petitioner. Those facts alone, however, do not necessarily establish either the inadequacy of trial counsel or resulting prejudice to petitioner, the two elements identified in [437]*437Krummacher v. Gierloff, supra, 290 Or at 874-75, 883, as necessary to obtain post-conviction relief.
Assuming arguendo that counsel rendered inadequate assistance,8 and assuming the credibility of petitioner’s testimony, petitioner did not establish, by a preponderance of the evidence, facts demonstrating that he was prejudiced as a result of counsel’s acts or omissions.9 Petitioner testified that he would not have pleaded guilty, or would have tried to withdraw the plea, under certain other circumstances. Significantly, he did not — although he had the opportunity — make a similar statement with respect to what he would have done with further information obtained through the process provided by ORS 135.432.
Because petitioner did not offer evidence to the effect that he would have withdrawn his plea in response to information that he could have obtained pursuant to ORS 135.432, or evidence to support any other theory of prejudice resulting from failure to gain that information, we conclude that petitioner failed to demonstrate that his trial counsel’s omissions prejudiced him. Therefore, petitioner is not entitled to relief.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
[438]*438APPENDIX
ORS 135.432 provides:
“(1) The trial judge shall not participate in plea discussions, except to inquire of the parties about the status of any discussions or to participate in a tentative plea agreement as provided in subsections (2) to (4) of this section. Any other judge, at the request of both the prosecution and the defense, or at the direction of the presiding judge, may participate in plea discussions. Participation by a judge in the plea discussion process shall be advisory, and shall in no way bind the parties. If no plea is entered pursuant to these discussions, the advice of the participating judge shall not be reported to the trial judge. If the discussion results in a plea of guilty or no contest, the parties, if they both agree to do so, may proceed with the plea before a judge involved in the discussion. This plea may be entered pursuant to a tentative plea agreement as provided in subsections (2) to (4) of this section.
“(2) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or no contest in the expectation that charge or sentence concessions will be granted, the trial judge, upon request of the parties, may permit the disclosure to the trial judge of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. The trial judge may then advise the district attorney and defense counsel whether the trial judge will concur in the proposed disposition if the information in the presentence report or other information available at the time for sentencing is consistent with the representations made to the trial judge.
“(3) If the trial judge concurs, but later decides that the final disposition of the case should not include the sentence concessions contemplated by the plea agreement, the trial judge shall so advise the defendant and allow the defendant a reasonable period of time in which to either affirm or withdraw a plea of guilty or no contest.
“(4) When a plea of guilty or no contest is tendered or received as a result of a prior plea agreement, the trial judge shall give the agreement due consideration, but notwithstanding its existence, the trial judge is not bound by it, and may reach an independent decision on whether to grant sentence concessions under the criteria set forth in ORS 135.415.”