Welsh v. Taylor

392 P.3d 366, 284 Or. App. 387, 2017 Ore. App. LEXIS 352
CourtCourt of Appeals of Oregon
DecidedMarch 15, 2017
DocketCV131714; A157358
StatusPublished
Cited by3 cases

This text of 392 P.3d 366 (Welsh v. Taylor) 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
Welsh v. Taylor, 392 P.3d 366, 284 Or. App. 387, 2017 Ore. App. LEXIS 352 (Or. Ct. App. 2017).

Opinion

DEHOOG, J.

Petitioner was convicted of one count of unlawful delivery of methamphetamine within 1,000 feet of a school, ORS 475.892, one count of unlawful delivery of heroin within 1,000 feet of a school, ORS 475.852, and three counts of felon in possession of a firearm, ORS 166.250(c).1 He appeals from a judgment denying his petition for post-conviction relief from those convictions on the ground that he received inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Petitioner contends that trial counsel was inadequate for failing to argue that the trial court should have applied the “shift-to-I” rule in imposing consecutive sentences. Defendant superintendent counters that the shift-to-I rule is inapplicable because petitioner’s convictions did not arise from a single “criminal episode” under ORS 131.505(4).2 For the reasons set forth below, we conclude that the post-conviction court correctly determined that the shift-to-I rule did not apply to petitioner’s convictions, and that trial counsel did not provide inadequate assistance in failing to argue that the rule did apply. Further, we conclude that the post-conviction court correctly determined that petitioner was not prejudiced by trial counsel’s decision not to make that argument. Accordingly, we affirm the court’s denial of post-conviction relief.

We review the denial of a post-conviction claim of inadequate assistance of counsel for legal error. Yeager v. Maass, 93 Or App 561, 564, 763 P2d 184 (1988). We are bound by the post-conviction court’s findings of historical fact if there is evidence in the record to support them. Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002). If the post-conviction court did not make express factual findings, and “there is evidence from which such facts could be [389]*389decided more than one way, we will presume that the facts were decided in a manner consistent with the [court’s] ultimate conclusion.” Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).

We state the following facts in accordance with those standards. Salem police officers became interested in petitioner’s apartment after the manager reported an unusual number of people entering and leaving the apartment. When officers later entered the residence to execute a warrant for petitioner’s arrest, they observed evidence of criminal activity, including “methamphetamine and guns all over the place,” which led to the issuance of a search warrant for the residence. In the course of the ensuing search of the home for methamphetamine, officers also found a large amount of heroin in two backpacks. The search of petitioner’s apartment resulted in the seizure of 113.4 grams of heroin, 45.9 grams of methamphetamine, scales, packaging materials, detailed drug records, $3,000 in cash, and six firearms. When officers asked petitioner what items they would find in his apartment, he claimed not to know exactly what they would find, but said that “everything” in the home belonged to him. He explained that the firearms had been given to him either as “collateral” or in trade for drugs. He also said that all of the firearms in the apartment were his and were “for show.” Petitioner told the officers that he had been selling methamphetamine for only a short period of time, and that the $3,000 was money that he had collected to “re-up,” or purchase more methamphetamine.

Petitioner was subsequently indicted for 10 felony drug and weapon offenses based on evidence found during the search of his home. Pursuant to plea negotiations, petitioner entered guilty pleas to Count 1, delivery of methamphetamine within 1,000 feet of a school, Count 3, delivery of heroin within 1,000 feet of a school, and Counts 5, 7, and 10, felon in possession of a firearm, and the state moved to dismiss the remaining charges. Under the terms of the plea agreement, both parties were free to make recommendations regarding sentencing to the trial court. At sentencing, the state argued for the maximum amount of prison time available under the sentencing guidelines on each count, to be served consecutively, for an aggregate sentence of 180 [390]*390months. Defense counsel initially argued for a 41-month prison term on both Count 1 and Count 3 to be served consecutively, with an additional 25-month term to run concurrently on Counts 5, 7, and 10, but consecutively to Counts 1 and 3, for an aggregate sentence of 107 months’ imprisonment. Counsel argued that,

“although these were separate crimes, the guns—you know, we pled to separate guns, it was all part of a similar situation, and consequently should run concurrent.”

The trial court imposed an aggregate sentence of 120 months’ incarceration and 36 months of post-prison supervision. Specifically, on Count 1, the methamphetamine charge, the court found that petitioner’s sentencing grid block was an 8A and imposed 45 months’ imprisonment; on Count 3, the heroin charge, the court likewise calculated petitioner’s grid block to be 8A and imposed 45 months’ imprisonment to be served consecutively to Count 1; and on Counts 5, 7, and 10, the firearm charges, petitioner’s grid block was a 6A and the court imposed 30 months’ imprisonment to be served concurrently with each other but consecutively to Counts 1 and 3. After the court imposed that sentence, the following colloquy occurred:

“[TRIAL COUNSEL]: I guess for the purposes of the record, we would object to the consecutive sentences on the delivery charges.
«* * * * *
“THE COURT: They’re separate—obviously, I don’t think there’s any argument at all in terms of the guns and the sales. Is there any need to argue my ability to impose consecutive sentences between delivery of heroin on one hand and delivery of methamphetamine on the other hand?
“ [THE STATE]: I think the charging document is sufficient, Your Honor. I mean, I don’t think—if it was different theories as it relates to the same controlled substances, but I think the fact that we’re talking about more than one controlled substance is sufficient legally speaking for the Court to impose consecutive sentences.
“THE COURT: I agree, but I will note your objection.”

[391]*391Petitioner subsequently sought post-conviction relief alleging various claims, only one of which is before us on appeal.3 In that claim, petitioner alleged that trial counsel provided inadequate assistance of counsel under Article I, section 11, and the Sixth Amendment. Specifically, petitioner asserted that trial counsel should have argued for application of the shift-to-I rule, OAR 213-012-0020(2)(a)(B), at sentencing. At his post-conviction trial, petitioner argued that the shift-to-1 rule applied to his convictions because they all were for conduct that petitioner engaged in during a single “criminal episode” under ORS 131.505(4).

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Related

State v. Martin
519 P.3d 132 (Court of Appeals of Oregon, 2022)
State v. Wilder
471 P.3d 798 (Court of Appeals of Oregon, 2020)
State v. Taylor
428 P.3d 939 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
392 P.3d 366, 284 Or. App. 387, 2017 Ore. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-taylor-orctapp-2017.