Trujillo v. Maass

*439 VAN HOOMISSEN, J.,

concurring.

I agree with the majority opinion’s analysis, conclusion, and disposition in this case.

I write separately to express my concern about the state’s argument in its Court of Appeals brief that:

“There is no evidence in the record to demonstrate defense counsel could have unilaterally submitted a ‘tentative’ agreement to the judge ‘for concurrence,’ under the provisions of ORS 135.432. There is no evidence in the record that indicates the district attorney would have agreed to such a submission, that the trial court would have either accepted or rejected the agreement, that the petitioner would have taken the case to trial rather than join in the bargain or that petitioner’s ultimate length of incarceration would be any different.”

The record in this case does not indicate whether petitioner’s trial attorney considered taking the tentative plea agreement to the trial judge, ORS 135.432(2), and, if so, why the attorney did not. Nor does the record indicate whether petitioner did or did not know about the ORS 135.432(2) procedure and, if he did know, whether he attached any particular significance to the procedure or wanted to use it in this case. It does seem reasonable to believe, however, that a defendant would be interested in knowing, before entering a plea of guilty or no contest, whether the trial judge would concur in the tentative plea agreement’s disposition of the case. 1

In its response to the petition for review, the state argues that it was not ineffective assistance of counsel for petitioner’s trial attorney to have failed to use the procedure found in ORS 135.432(2):

“[0]n this record, petitioner can prevail only if attempting to use or using the procedure outlined in ORS 135.432(2) is a necessary component of adequate assistance of criminal defense counsel; that is, if every defense attorney whose client pleads guilty pursuant to a plea agreement and who does not use the ORS 135.432(2) procedure, is held for that *440 reason alone to have rendered inadequate assistance to his client, irrespective of the attorney’s reasons, if any, for not utilizing the procedure, and irrespective of whether the attempt to use the procedure would have been successful (i.e., whether the prosecutor and the trial court would have cooperated) and whether the failure to use it has prejudiced the criminal defendant.”

I would agree that using the procedure found in ORS 135.432(2) is not an absolute requisite to adequate assistance of counsel. There may be a rational, articulable reason for not doing so in a particular case. A trial attorney’s failure to use the procedure does not necessarily merit post-conviction relief unless the failure is shown to lie ‘ ‘ outside the wide range of professionally competent assistance,” Strickland v. Washington, 466 US 668, 690 , 104 S Ct 2052 , 80 L Ed 2d 674 , reh ’g den 467 US 1267 (1984); there must be no plausible tactical rationale for the omission. See Krummacher v. Gierloff, 290 Or 867, 875-81 , 627 P2d 458 (1981) (if defense counsel exercises reasonable professional skill and judgment, a reviewing court will not second-guess the lawyer; but neither will the court ignore decisions which reflect an absence or suspension of professional skill and judgment). On the other hand, ORS 135.405 (plea discussions and agreements), ORS 135.415 (criteria to be considered in plea discussions and agreements), and ORS 135.425 (responsibility of defense counsel) recognize the legitimacy of plea discussions in many cases and the responsibility of a trial attorney to insure that the defendant is informed about the statutory procedure, including the trial judge’s role and discretion under ORS 135.432.

My point is, once the prosecutor and the trial attorney have entered into a tentative plea agreement that the defendant has approved, ordinarily the trial attorney should try to get the trial judge’s concurrence with the tentative plea agreement’s disposition of the case. I have some difficulty in accepting the state’s assertion that it might not constitute inadequate assistance if atrial attorney, without good reason, failed to at least try to get the trial judge’s concurrence in the proposed disposition. Notwithstanding, I recognize that, generally, tactical decisions of trial attorneys are to be respected by appellate courts. Krummacher v. Gierloff, supra, 290 Or at 875-81 .

*441 ORS 135.432(2) provides that, “upon request of the parties,” the trial judge may review the tentative plea agreement. That language suggests that if petitioner’s trial attorney had unilaterally submitted the tentative plea agreement to the trial judge for concurrence or, if the prosecutor affirmatively had refused to join in a request for review, 2 the trial judge may have lacked authority to review the tentative plea agreement or to “advise” whether the judge would concur in the proposed disposition. In such a case, the trial attorney should make a record of the facts and so advise the defendant, who then may decide whether or not to proceed under the tentative plea agreement without first having secured a commitment from the trial judge as to the disposition of the case.

I also recognize that ORS 135.432(2) provides that the trial judge “may” permit the disclosure of the tentative plea agreement and “may” then advise the parties whether the judge will concur in the proposed disposition. The fact that the judge has discretion in these matters, however, is no reason for trial attorneys not to at least try to use the statutory procedure. The state’s suggestion, that atrial attorney might not approach the trial judge because “the judge might have a policy of never making a binding commitment, ’ ’ is not persuasive to me. A judge who absolutely refuses ever to consider examining a tentative plea agreement presented to the judge by the parties pursuant to ORS 135.432(2), may be improperly refusing to exercise the discretion conferred on the judge by ORS 135.432. A judge who has a policy of reviewing tentative plea agreements upon request of the parties pursuant to ORS 135.432(2), but also of never making a binding commitment may or may not be acting within the permissible limits of discretion, a question I will leave for another day.

I would suggest that a trial attorney who, after negotiating a tentative plea agreement with the prosecutor that the defendant accepted, fails to try to use the procedures found in ORS 135.432(2), should be prepared to explain why not if the issue is properly raised later. As noted, there may be a rational, articulable reason for not doing so in a particular case. Then again, there may not be one.

After reviewing the record here, I do not understand the post-conviction court’s finding of fact that “Petitioner’s attorney had no basis on which to submit the plea bargain to the court per ORS 135.432.” I submit that that finding is not supported by evidence in the record.

The state argues that a trial attorney might not pursue the ORS 135.432(2) procedure because “the prosecutor might not like it.” I find that argument unpersuasive.