Zimmerlee v. Williams

Court of Appeals of Oregon

Zimmerlee v. Williams

728 P.2d 49, 82 Or. App. 279

CourtCourt of Appeals of Oregon

DecidedNovember 12, 1986

Docket85-0187; CA A37979

StatusPublished

This text of 728 P.2d 49 (Zimmerlee v. Williams) 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

Zimmerlee v. Williams, 728 P.2d 49, 82 Or. App. 279 (Or. Ct. App. 1986).

Pincite

Opinion

WARREN, J.

Petitioner seeks post-conviction relief from her conviction of manslaughter, contending that her guilty plea was the result of her trial attorney’s failure to inform her of her defenses under ORS 161.219 (shooting a burglar)¹ and ORS 161.225 (shooting a trespasser about to commit a felony by force and violence).² The trial court held that petitioner received effective assistance of counsel and denied post-conviction relief. We conclude that petitioner has established both that she received ineffective assistance and resulting prejudice.

Petitioner shot and killed her estranged boyfriend when he broke through the locked and bolted front door of her home. She was charged with murder. After plea bargaining, she pled guilty to manslaughter, and the murder charge was dismissed.

In Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981), the court set forth the constitutional requirements for effective counsel:

“We conclude from a review of the cases and from our own analysis that any statement of the standard of performance constitutionally required of counsel must necessarily be general and that a degree of subjectivity in application cannot be avoided. * * *

[282]*282<<* * * * *

“[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 * * *.” 290 Or at 873-75. (Citation omitted.)

Petitioner’s attorney testified that he did not inform defendant of the defenses provided in ORS 161.219 and ORS 161.225, because he did not believe that they were applicable. He based his decision on the fact that petitioner had given the decedent the key to her home on the afternoon of the shooting and in the light of the fact that the decedent had, on prior occasions, spent the night at petitioner’s home. However, petitioner’s attorney was aware that she had demanded the return of her key, that she had deadbolted her door in order to prevent entry and that the decedent had beaten petitioner on several occasions. Under those circumstances, ORS 161.219 and ORS 161.225 are clearly applicable and could have provided her with a persuasive defense. ■

While it is true that it is a tactical decision whether to assert a defense, Krummacher v. Gierloff, supra, 290 Or at 875, an attorney nevertheless has a duty to inform his client of all viable defenses. Petitioner pled guilty under the erroneous belief that she had no viable defenses. Under the circumstances, she could not have made a knowing and intelligent decision as to her plea.

Reversed and remanded with instructions to set aside the conviction and to remand the cause to the original trial court.

Free access — add to your briefcase to read the full text and ask questions with AI

WARREN, J.

Petitioner seeks post-conviction relief from her conviction of manslaughter, contending that her guilty plea was the result of her trial attorney’s failure to inform her of her defenses under ORS 161.219 (shooting a burglar)¹ and ORS 161.225 (shooting a trespasser about to commit a felony by force and violence).² The trial court held that petitioner received effective assistance of counsel and denied post-conviction relief. We conclude that petitioner has established both that she received ineffective assistance and resulting prejudice.

Petitioner shot and killed her estranged boyfriend when he broke through the locked and bolted front door of her home. She was charged with murder. After plea bargaining, she pled guilty to manslaughter, and the murder charge was dismissed.

In Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981), the court set forth the constitutional requirements for effective counsel:

“We conclude from a review of the cases and from our own analysis that any statement of the standard of performance constitutionally required of counsel must necessarily be general and that a degree of subjectivity in application cannot be avoided. * * *

[282]*282<<* * * * *

“[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 * * *.” 290 Or at 873-75. (Citation omitted.)

Petitioner’s attorney testified that he did not inform defendant of the defenses provided in ORS 161.219 and ORS 161.225, because he did not believe that they were applicable. He based his decision on the fact that petitioner had given the decedent the key to her home on the afternoon of the shooting and in the light of the fact that the decedent had, on prior occasions, spent the night at petitioner’s home. However, petitioner’s attorney was aware that she had demanded the return of her key, that she had deadbolted her door in order to prevent entry and that the decedent had beaten petitioner on several occasions. Under those circumstances, ORS 161.219 and ORS 161.225 are clearly applicable and could have provided her with a persuasive defense. ■

While it is true that it is a tactical decision whether to assert a defense, Krummacher v. Gierloff, supra, 290 Or at 875, an attorney nevertheless has a duty to inform his client of all viable defenses. Petitioner pled guilty under the erroneous belief that she had no viable defenses. Under the circumstances, she could not have made a knowing and intelligent decision as to her plea.

Reversed and remanded with instructions to set aside the conviction and to remand the cause to the original trial court.

Cite This Page — Counsel Stack

Bluebook (online)

728 P.2d 49, 82 Or. App. 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerlee-v-williams-orctapp-1986.

Opinion

Related

Cite This Page — Counsel Stack