“Because the post-conviction court’s ruling was based on an error of law, we reverse and remand for the post-conviction court to determine whether petitioner was misinformed and, if so, whether he would have accepted the plea deal if he knew that he would not be credited equal time served for each concurrent sentence.”
How later courts described this case
- “Because the post-conviction court’s ruling was based on an error of law, we reverse and remand for the post-conviction court to determine whether petitioner was misinformed and, if so, whether he would have accepted the plea deal if he knew that he would not be credited equal time served for each concurrent sentence.”
Written by the judges who cited it.
The opinion
84
Argued and submitted October 30, 2018, reversed and remanded
October 16, 2019
OMTEME MONI BLAYWAS SANDERS,
Petitioner-Appellant,
v.
Steve BROWN,
Superintendent,
Warner Creek Correctional Facility,
Defendant-Respondent.
Lake County Circuit Court
150107CV; A163875
452 P3d 1032
Petitioner seeks post-conviction relief. He assigns error to the post-conviction
court’s conclusion, as a matter of law, that petitioner’s counsel was not ineffective
for failing to inform petitioner of how time served would be calculated, because
that level of specificity is never required by the state or federal constitutions. The
post-conviction court did not make factual findings as to whether petitioner’s
counsel misrepresented how credit for time served would be calculated or deter-
mine whether petitioner was prejudiced. Held: Under the Oregon Constitution,
counsel must inform a client of those circumstances that counsel knows to be
material to their client’s decision whether to plead guilty and waive jury trial
rights. Long v. State of Oregon, 130 Or App 198, 202, 880 P2d 509 (1994). The
Court of Appeals reversed and remanded for the post-conviction court to deter-
mine whether petitioner’s counsel misinformed him and, if so, whether he was
prejudiced.
Reversed and remanded.
Robert F. Nichols, Jr., Judge.
Jason Weber argued the cause for appellant. Also on the
brief was O’Connor Weber LLC.
Ryan Kahn, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Rebecca M. Auten, Assistant Attorney General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
Cite as 300 Or App 84 (2019) 85
LAGESEN, P. J.
Petitioner pleaded guilty to two counts of assault
in the second degree pursuant to a plea agreement; the two
counts arose from two separate incidents. Petitioner claims
that the agreement was for petitioner to receive equal credit
for time served on both of his offenses, despite having served
differing amounts of time for each offense. Ultimately, it
was determined that petitioner could not lawfully be cred-
ited with equal time served, because the offenses were not
related. That resulted in petitioner receiving time served
credit for 100 days fewer than he anticipated.
Petitioner now seeks post-conviction relief. The pri-
mary issue before us is whether the post-conviction court
erred in denying petitioner relief based on its conclusion, as
a matter of law, that petitioner’s counsel was not ineffective
for failing to inform petitioner of how time served would be
calculated, because that level of specificity is never required
by the state or federal constitutions. We conclude that the
post-conviction court erred. In order to be adequate under
the Oregon Constitution, a lawyer must accurately apprise
a client of consequences counsel knows to be material to the
client’s decision whether to accept a plea offer. We therefore
reverse and remand for the post-conviction court to make
findings as to whether petitioner’s counsel misinformed him
about the issue of credit for time served and, if so, whether
he was prejudiced. Because we must reverse and remand
under the Oregon Constitution, we do not reach petitioner’s
arguments under the federal constitution.
On September 9, 2011, petitioner was charged with
assault in the second degree and five other offenses. All of
the offenses were against his wife and arose out of one inci-
dent. The case was dismissed on February 22, 2013. Less
than one month later, on March 14, 2013, petitioner was
charged again for the same incident. Eleven days later, he
was charged, based on a second incident with his wife, with
assault in the second degree and three other offenses.
Petitioner pleaded guilty to two counts of assault in
the second degree—one count for each incident—in exchange
for the state’s agreement to drop the other charges. The
agreement provided that petitioner would be sentenced to 70
86 Sanders v. Brown
months on each count, with sentences to run concurrently.
The parties then discussed with the court the credit that
petitioner would receive for time served:
“[DEFENSE COUNSEL]: He’s also eligible to get
credit for time served on that other case that’s mentioned
there, Your Honor.
“[THE STATE]: Your Honor, what happened was this
was charged in 2011 and then it was dismissed and refiled.
So, he served time under that other case number with the
same—
“THE COURT: Okay, so in case 112466CR, you’re
going to get credit for the time you served on that case also.
“* * * * *
“[THE COURT]: You will receive credit for time
served. Why should he get credit for the other case on this
case?
“[THE STATE]: Your Honor, it was the agreement that
the understanding was—
“THE COURT: It would be concurrent? Is that why
you’re getting it?
“[THE STATE]: Yeah.
“THE COURT: Okay. And it will be concurrent to the
time that you get on the previous case we discussed and on
case 112466.”
Ultimately, petitioner received 195 days of credit
for time served on the first charged offense because of the
time he served on the related charge before the case was
dropped and refiled. He only received 95 days of credit for
time served on the second offense.
Petitioner then initiated this post-conviction pro-
ceeding. According to petitioner, the agreement among peti-
tioner, his counsel, and the prosecutor was that he would
receive equal credit for time served on each charge, which
would mean 100 fewer days of incarceration. However, under
ORS 137.370(2), a person may only receive credit for time
served on related offenses, and petitioner’s offenses were not
related. Thus, petitioner contends, his counsel inadequately
Cite as 300 Or App 84 (2019) 87
advised him regarding the application of credit for time
served. Petitioner further contends that that inadequate
advice caused him to accept a plea deal that he otherwise
would have rejected.
The post-conviction court rejected that claim. In so
doing, it noted that the parties seemed to agree that peti-
tioner would receive equal credit for time served on each
case. The court did not, however, make express factual find-
ings on the issue. Instead, the court reasoned that, as a mat-
ter of law, counsel was not required by either the state or
federal constitution to give petitioner specific advice about
credit for time served:
“The 100 days that [is] involved is less than five (5) per-
cent of the total time to which he was sentenced. In giving
advice as to the consequences of a plea[,] neither the United
States nor Oregon Constitution require the level of specific-
ity requested by Petitioner. Counsel exercised reasonable
skill and judgment.”
The court thereafter entered judgment denying the petition
for post-conviction relief.
Petitioner appeals, assigning error to the post-
conviction court’s denial of relief on his claim that his coun-
sel was inadequate and ineffective when advising him to
accept the plea agreement. Petitioner contends that his
counsel was ineffective because counsel’s failure to investi-
gate the law resulted in misadvising petitioner that he would
receive equal credit for time served. Respondent, the super-
intendent of Warner Creek Correctional Facility, maintains
that petitioner’s argument fails because the post-conviction
court did not find as fact that equal credit for time served
was part of the plea agreement.
“We review a post-conviction court’s grant or denial
of relief for legal error, accepting the court’s implicit and
explicit factual findings if there is evidence to support them.”
Monfore v. Persson, 296 Or App 625, 632, 439 P3d 519 (2019).
“[Adequate assistance] of counsel is particularly
important when a defendant is called upon to waive funda-
mental rights, as by a guilty plea or waiver of jury trial[.]”
Krummacher v. Gierloff, 290 Or 867, 874-75, 627 P2d 458 (1981).
88 Sanders v. Brown
Our cases explain that, under the Oregon Constitution, coun-
sel must inform a client of those circumstances that counsel
knows to be material to their client’s decision of whether to
plead guilty and waive jury trial rights. See Long v. State of
Oregon, 130 Or App 198, 202, 880 P2d 509 (1994) (“Failure
to inform a defendant of certain consequences of a criminal
plea may also constitute inadequate assistance of counsel.”
(Emphasis in original.)). One such potential consequence is
the length of the sentence to be served. Hartzog v. Keeney,
304 Or 57, 64, 742 P2d 600 (1987), modified on other grounds
by Moen v. Peterson, 312 Or 503, 824 P2d 404 (1991).
Here, however, the post-conviction court did not make
factual findings on whether petitioner was misinformed as
to how credit for time served would be calculated or whether
he was prejudiced. (If anything, the court suggested that
the parties agreed to give petitioner equal credit for time
served.) Instead, the court concluded as a matter of law
that neither the state nor the federal constitution required
petitioner to be precisely informed on the length of his sen-
tence when the difference between petitioner’s actual and
anticipated sentence represented “less than five (5) percent
of the total time to which he was sentenced.” Because the
court could find nothing requiring “the level of specific-
ity requested by petitioner,” the court concluded that peti-
tioner’s counsel was not ineffective. As two of our cases—
Hartzog and Long—illustrate, that conclusion is incorrect.
On this record, as the post-conviction court acknowledged,
not receiving equal credit for time served for both sentences
could have been a decisive factor for petitioner. Therefore,
the level of specificity contemplated by the post-conviction
court is required if petitioner’s decision to accept a plea offer
rested on those specific terms, and counsel was aware of
that fact and advised petitioner about it.
In Hartzog, the Supreme Court concluded that the
petitioner was entitled to relief when his counsel did not
advise him that he could receive a mandatory minimum sen-
tence of 10 years if he pleaded guilty. 304 Or at 59-60. The
court reasoned that, when only informed of a maximum sen-
tence, a defendant contemplating acceptance of a plea offer
could reasonably expect to serve a shorter sentence by abid-
ing by prison rules, but as for the mandatory incarceration
Cite as 300 Or App 84 (2019) 89
time that comes with a minimum sentence, “[t]hat conse-
quence is one of which an accused must be aware in order to
make an informed decision to waive his right to trial and to
enter a plea of guilty.” Id. at 64.
Long likewise provides useful guidance. In Long,
the post-conviction court denied relief on the petitioner’s
claim that his trial counsel was inadequate and ineffec-
tive for misadvising the petitioner during the plea negoti-
ations that his first-degree sexual abuse conviction could
be expunged. 130 Or App at 201-02. The petitioner claimed
that he would not have accepted the deal if he had known
that the conviction could not be expunged. Id. at 201.
We reversed. Distinguishing between passive non-
disclosure and affirmative misrepresentations by counsel,
we explained that, “having undertaken to provide advice
on expungeability in response to his client’s expressed con-
cerns, counsel was obliged to do so accurately and com-
pletely.” Id. at 202-03. Although we stressed that not “every
misrepresentation of penal consequences constitutes inad-
equate assistance of counsel,” we explained that the preju-
dice element of an inadequate-assistance-of-counsel claim is
the appropriate place for assessing whether counsel’s erro-
neous advice during plea negotiations rises to the level of a
constitutional violation. Id. at 203. We explained that the
inquiry on the prejudice element should focus on whether
the misunderstanding engendered by counsel’s erroneous
advice “played a significant role” in the petitioner’s “consid-
eration of the plea proposal.” Id.
Here, the post-conviction court did not make factual
findings as to whether petitioner’s counsel misrepresented
how credit for time served would be calculated or conduct
the prejudice inquiry contemplated by Long.1 Instead, as we
1
Petitioner requests that this court direct the post-conviction court to apply
the federal standard in determining whether counsel’s alleged inadequacy prej-
udiced petitioner. In Gable v. State of Oregon, 353 Or 750, 305 P3d 85 (2013),
the Supreme Court explained that the tests are functionally similar. See id. at
759-61 (explaining that the “reasonable probability” standard under the Sixth
Amendment to the United States Constitution is similar to the legal showing
that must be made under the Oregon Constitution, and differentiating that show-
ing from the factual preponderance standard). We therefore decline to direct the
post-conviction court to apply the federal standard, which we do not understand
to differ materially from the state standard.
90 Sanders v. Brown
understand it, the court’s ruling was based on its erroneous
legal conclusion that counsel was never required to be as
specific as petitioner requested in advising how time served
would be calculated. Although the superintendent argues to
the contrary that the post-conviction court found that it was
not persuaded that petitioner had been misadvised about
credit for time served, the court’s written decision is not
susceptible to that reading. If anything, the post-conviction
court explicitly appeared inclined to accept petitioner’s ver-
sion of events:
“[Defense counsel] argued that [petitioner] should receive
credit for case number * * *1102466CR in both cases before
the court for sentencing. The [prosecutor] seemed to agree
that it was the parties’ agreement. The [trial court] seemed
to Order that [petitioner] received credit on both cases,
however, the court may have only been ordering the sen-
tences were concurrent.”
Ultimately the court did not need to reach the issue because
it concluded, as a matter of law, that advice about credit for
time served was never required by the state or federal con-
stitution when that time served represents a small percent-
age of the total sentence.
Because the post-conviction court’s ruling was based
on an error of law, we reverse and remand for the post-
conviction court to determine whether petitioner was misin-
formed and, if so, whether he would have accepted the plea
deal if he knew that he would not be credited equal time
served for each concurrent sentence.
Reversed and remanded.