rejecting post-conviction petitioner’s claim that trial counsel was inadequate for fail- ing to file motion to suppress, where counsel’s decision was a strategic decision designed to obtain a better plea offer from state
How later courts described this case
- rejecting post-conviction petitioner’s claim that trial counsel was inadequate for fail- ing to file motion to suppress, where counsel’s decision was a strategic decision designed to obtain a better plea offer from state
Written by the judges who cited it.
The opinion
257
Submitted March 4, affirmed April 20, petition for review denied July 28, 2022
(370 Or 197)
TRIVONNE JAY BARNETT,
Petitioner-Appellant,
v.
Nichole BROWN,
Superintendent,
Columbia River Correctional Institution,
Defendant-Respondent.
Multnomah County Circuit Court
19CV41065; A174841
509 P3d 748
Patricia A. Sullivan, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
PER CURIAM
Affirmed.
258 Barnett v. Brown
PER CURIAM
Police found incriminating evidence in petitioner’s
backpack when they searched it after placing him into cus-
tody. The search was warrantless, and petitioner had an
arguably meritorious argument that no warrant exception
adequately permitted the search. Ultimately, petitioner
pleaded guilty, then filed for post-conviction relief, arguing
that trial counsel was ineffective and inadequate for failing
to litigate a motion to suppress prior to petitioner accepting
the plea offer from the state. The post-conviction court con-
cluded that trial counsel was not ineffective. We affirm.
Generally, to demonstrate inadequate assistance, a
petitioner must show that “every reasonable defense attor-
ney would have” pursued a particular strategy. Hagberg v.
Coursey, 269 Or App 377, 386-87, 344 P3d 1118 (2015). When
addressing a plea offer, “defense attorneys must make care-
ful strategic choices in balancing opportunities and risks.”
Premo v. Moore, 562 US 115, 124, 131 S Ct 733, 178 L Ed 2d
649 (2011). Accordingly, “strict adherence to the Strickland
standard [is] is all the more essential when reviewing the
choices an attorney made at the plea bargain stage.” Id. at
125. We do not view counsel’s performance through “ ‘the dis-
torting lens of hindsight.’ ” Owen v. Taylor, 287 Or App 639,
651, 404 P3d 1021 (2017) (quoting Johnson v. Premo, 361 Or
688, 700, 399 P3d 431 (2017)). “[A]n after-the-fact assess-
ment [is] counter to the deference that must be accorded
counsel’s judgment and perspective when the plea was nego-
tiated, offered, and entered.” Moore, 562 US at 126.
Here, the post-conviction court considered the affi-
davit of defense counsel, which stated:
“While a plea offer had been extended to [petitioner], I
did not believe it was a reasonable offer and informed the
Deputy District attorney of my dissatisfaction. I encouraged
the DDA to make a realistic offer and I advised him that I
thought there was a meritorious argument that the search
of the vehicle and backpack was improper and subject to a
motion to suppress. We exchanged arguments and author-
ities on the issue while we also discussed settlement. (See
exhibits 2, 3, 4, and 5 attached which are true and accurate
copies of emails exchanged.) I advised [petitioner] that I
would file motions to suppress if we proceeded to trial as
Cite as 319 Or App 257 (2022) 259
well as any other motions that were appropriate. I advised
him that we would have the right to cross-examine the wit-
nesses, call our own witnesses, if any, and [petitioner] had
the right to testify. [Petitioner] wanted me to continue to
seek a favorable plea agreement.”
Additionally, the post-conviction court considered
the affidavit from the prosecutor, which stated, in part:
“[Trial counsel] was using the threat of a motion to sup-
press as leverage to obtain a better offer and was able to
provide me with the case law he had researched on that
issue. Although I believed that [the] state would prevail on
a motion to suppress, in order to ensure certainty by a way
of a plea, versus having to litigate the legal and factual
issues, I believed it was in the best interest of the state to
accept [trial counsel’s] request.”
In light of that evidence, counsel’s strategy to delay
the filing of a motion to suppress until trial and use that
leverage to extract plea concessions was not just far from
constitutionally inadequate, it was effective. Petitioner has
not demonstrated deficient performance by counsel under
either the state or federal constitutions, and the post-
conviction court did not err in so concluding.
Affirmed.