Brown v. Miller

403

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

Submitted March 10, affirmed April 19, petition for review denied

August 3, 2023 (371 Or 309)

DUSTIN LEE BROWN,

Petitioner-Appellant,

v.

Jamie MILLER,

Superintendent,

Snake River Correctional Institution,

Defendant-Respondent.

Malheur County Circuit Court

19CV41196; A177626

J. Burdette Pratt, Judge.

Jedediah Peterson and O’Connor Weber LLC filed the

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Greg Rios, Assistant Attorney General,

filed the brief for respondent.

Before Lagesen, Chief Judge, and Kamins, Judge, and

Armstrong, Senior Judge.

LAGESEN, C. J.

Affirmed.

404 Brown v. Miller

LAGESEN, C. J.

Petitioner pointed his rifle at the victim, a stranger

to him, as the victim drove through petitioner’s neighbor-

hood. For that conduct, a jury found petitioner guilty—in

2017—of unlawful use of a weapon (UUW), menacing, and

pointing a firearm at another. In this post-conviction pro-

ceeding, petitioner seeks relief from some or all of those

convictions on the ground that his trial counsel rendered

inadequate and ineffective assistance, in violation of his

rights under Article I, section 11, of the Oregon Constitution

and the Sixth and Fourteenth Amendments to the United

States Constitution, in three respects: (1) in not canvassing

the victim’s neighborhood for witnesses who could impeach

him; (2) in not advising him about the minimum sentence

attached to the offense of UUW; and (3) in not challenging

the trial court’s decision to instruct the jury that it could

convict defendant by a nonunanimous verdict, in view

of the Supreme Court’s later-decided opinion in Ramos v.

Louisiana, 590 US ___, 140 S Ct 1390, 1396, 206 L Ed 2d

583 (2020), which held that the Sixth Amendment requires

a unanimous verdict to support a conviction in state court.

The post-conviction court denied relief. We review for legal

error, accepting the post-conviction court’s explicit and nec-

essary implicit factual findings so long as those findings

have evidentiary support, Green v. Franke, 357 Or 301, 312,

350 P3d 188 (2015), and affirm.

Failure to canvass the victim’s neighborhood. Peti-

tioner first assigns error to the post-conviction court’s rejec-

tion of his claim that his trial counsel was inadequate and

ineffective in failing to canvass the victim’s neighborhood

for witnesses who could have impeached the victim. See

Smith v. Kelly, 318 Or App 567, 568-69, 508 P3d 77 (2022),

rev den, 370 Or 822 (2023) (stating standards for inadequate

and ineffective assistance of counsel claims under the state

and federal constitutions). Having considered counsel’s rea-

sons for not taking that approach, we agree with the post-

conviction court’s conclusion that counsel’s failure to can-

vass the victim’s neighborhood to look for impeachment

witnesses was “legally and factually appropriate to the

nature and complexity of the case” and, under the circum-

stances, would not be considered necessary to equip counsel

Nonprecedential Memo Op: 325 Or App 403 (2023) 405

“to advise and represent the client in an informed manner.”

Stevens v. State of Oregon, 322 Or 101, 108, 902 P2d 1137

(1995). In short, that decision was not a failure to “exercise

[ ] reasonable professional skill and judgment.” Id.; see also

Krummacher v. Gierloff, 290 Or 867, 874, 627 P2d 458 (1981)

(clarifying that trial counsel are not required to “expend

time and energy uselessly or for negligible potential benefit

under the circumstances of the case”).

Failure to advise petitioner regarding the minimum

sentence for UUW. Petitioner next assigns error to the post-

conviction court’s denial of relief on his claim that trial

counsel was inadequate and ineffective in not advising him

regarding the minimum sentence connected to the offense

of UUW. Petitioner asserts that he was prejudiced by the

alleged deficient advice on likely sentencing for a jury con-

viction because, had he known of the potential outcome, he

would have settled the case. See Smith, 318 Or App at 568-

69 (explaining performance and prejudice requirements for

inadequate and ineffective assistance of counsel claims).

The post-conviction court rejected that theory of prejudice,

finding that petitioner had not proved it: “Petitioner did not

prove that he had any interest in or any opportunity to set-

tle the case without going to trial.” That determination is

supported by the record and binds us on appeal. See Rowen

v. Gonenne, 274 Or App 803, 814, 362 P3d 694 (2015) (appel-

late court is bound by a trial court’s finding that a party’s

evidence is not sufficiently persuasive).

Nonunanimous jury verdict instruction. Petitioner’s

third and fourth assignments arise from his contention that

trial counsel performed deficiently by not objecting to the

trial court’s jury instruction allowing for a nonunanimous

verdict and thereby not preserving an argument regarding

that instruction’s constitutionality. Petitioner separately

assigns error to the post-conviction court’s conclusion that

counsel was not deficient for “failing to preserve a nonunan-

imous jury issue” and for “failing to advise regarding the

risk of a nonunanimous jury.” Petitioner combines argument

on those two assignments of error because, according to peti-

tioner, they present the same legal question. He argues that

counsel “should have anticipated” the holding of Ramos, 590

US at ___, 140 S Ct at 1396, that the Sixth Amendment

406 Brown v. Miller

right to a jury trial requires a unanimous verdict to sup-

port a conviction in state court. Relief on those grounds is

foreclosed by Smith, 318 Or App at 569, where we held that

neither Article I, section 11, of the Oregon Constitution nor

the Sixth and Fourteenth Amendments to the United States

Constitution require counsel to foresee that the United

States Supreme Court would later reverse course in terms

of unanimous jury verdicts.

Cumulative error. Finally, plaintiff contends that he

was prejudiced by the cumulative effect of counsel’s alleged

deficiencies. The post-conviction court denied relief on that

theory based in part on its finding that petitioner “did not

prove that he is entitled to post-conviction relief because of

cumulative error.” Setting aside the question whether cumu-

lative error is a viable theory of relief, petitioner has not

demonstrated that the post-conviction court’s finding that

he failed to prove cumulative error was erroneous.

Affirmed.