Dorn-Privett v. Brown

No. 685 December 28, 2023 783

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

ERIN ELIZABETH DORN-PRIVETT,

Petitioner-Appellant,

v.

Nichole BROWN,

Superintendent,

Coffee Creek Correctional Institution,

Defendant-Respondent.

Washington County Circuit Court

19CV41932; A176150

Patricia A. Sullivan, Senior Judge.

Submitted March 28, 2023.

Margaret Huntington and O’Connor Weber LLC filed the

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Robert A. Koch, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

Affirmed.

784 Dorn-Privett v. Brown

HELLMAN, J.

Petitioner appeals from a judgment that denied her

petition for post-conviction relief. In her sole assignment

of error, petitioner contends that the post-conviction court

erred when it concluded that her trial counsel did not pro-

vide inadequate and ineffective assistance of counsel after

counsel failed to argue for merger of petitioner’s convictions

under ORS 161.067(1). For the reasons below, we affirm.

Petitioner’s convictions were based on an incident

in which she drove her car at her neighbors during a dis-

pute. For that conduct, a jury found petitioner guilty of three

counts of attempted first-degree assault, ORS 163.185, three

counts of unlawful use of a weapon, ORS 166.220, three

counts of menacing, ORS 163.190, three counts of recklessly

endangering another person, ORS 163.195, and second-

degree disorderly conduct, ORS 166.025. At sentencing, the

trial court merged the guilty verdicts for unlawful use of a

weapon with the verdicts for first-degree attempted assault.

Petitioner’s counsel further argued that the menacing and

reckless endangering verdicts should also merge with the

first-degree attempted assault verdict; however, that argu-

ment was not explicitly based on ORS 161.067(1). The trial

court rejected petitioner’s argument regarding merger of

those verdicts.

In her post-conviction case, petitioner argued that

trial counsel failed to exercise reasonable professional skill

and judgment because counsel did not raise ORS 161.067(1)

as the legal basis for the trial court to merge the verdicts

for menacing, ORS 163.190, and recklessly endangering

another person, ORS 163.195, with the verdict for attempted

first-degree assault, ORS 161.405 and ORS 163.185. The

post-conviction court denied relief because it determined

that petitioner did not prove “that an argument for merger

under ORS 161.067(1) would have been successful had Trial

Counsel argued it at sentencing.”

We review the post-conviction court’s denial of relief

for legal error and are bound by the court’s “findings of his-

torical fact * * * if there is evidence in the record to support

them.” Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).

Cite as 329 Or App 783 (2023) 785

A petitioner is entitled to post-conviction relief under ORS

138.530 when “there has been a ‘substantial denial’ of a peti-

tioner’s ‘rights under the Constitution of the United States,

or under the Constitution of the State of Oregon, or both,

and which denial rendered the conviction void.’ ” Green, 357

Or at 311 (quoting ORS 138.530(1)(a)). Although we interpret

and apply Article I, section 11, of the Oregon Constitution

independently of the Sixth Amendment to the United States

Constitution, “the standards for determining the adequacy

of legal counsel under the state constitution are function-

ally equivalent to those for determining the effectiveness of

counsel under the federal constitution.” Montez v. Czerniak,

355 Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons,

355 Or 598, 330 P3d 595 (2014).

To be entitled to post-conviction relief based on a

claim of inadequate assistance of counsel, a petitioner must

prove that trial counsel failed to exercise reasonable profes-

sional skill and judgment and that the petitioner suffered

prejudice from counsel’s inadequacy. Id. (Article I, section

11); Strickland v. Washington, 466 US 668, 686, 104 S Ct

2052, 80 L Ed 2d 674 (1984) (Sixth Amendment).

Although there is no case law holding that the

crimes of menacing and recklessly endangering another

person merge with attempted first-degree assault under

ORS 161.067, the law does not require a petitioner to cite

a directly controlling case to establish the inadequacy of

counsel. Indeed, in Burdge v. Palmateer, 338 Or 490, 499,

112 P3d 320 (2005), the Supreme Court recognized that “[i]n

at least some cases, a lawyer’s failure to present an unset-

tled question may be inadequate assistance of counsel.” As

explained in Burdge, “[e]ven if the meaning of a statute

remains unsettled, the statute may so obviously offer pos-

sible benefits to a defendant that any lawyer exercising rea-

sonable professional skill and judgment would raise it.” Id.

at 500.

This is not one of those cases. As we explain below,

petitioner’s guilty verdicts do not merge; accordingly, trial

counsel did not fail to exercise reasonable professional skill

and judgment when she did not argue for merger under ORS

161.067(1). Raising an argument that is ultimately legally

786 Dorn-Privett v. Brown

incorrect would not have “obviously” provided any benefit to

petitioner, even if the law was unsettled at the time.

Under ORS 161.067(1), referred to as the “anti-

merger” statute, “[w]hen the same conduct or criminal epi-

sode violates two or more statutory provisions and each

provision requires proof of an element that the others do

not, there are as many separately punishable offenses as

there are separate statutory violations.” See State v. Barton,

304 Or App 481, 489, 468 P3d 510 (2020) (explaining that

the court “look[s] to the anti-merger statute, ORS 161.067”

to determine “whether multiple violations of the law must

merge”). Petitioner argues that the elements of menacing

and recklessly endangering another person are subsumed

into the elements of attempted first-degree assault and,

therefore, that they necessarily merge under ORS 161.067(1).

Beginning with attempted first-degree assault,

“[a] person is guilty of an attempt to commit a crime when

the person intentionally engages in conduct which consti-

tutes a substantial step toward commission of the crime.”

ORS 161.405(1). Petitioner’s attempt convictions were

charged under ORS 163.185(1)(a), first-degree assault,

which requires that a person “[i]ntentionally cause[ ] serious

physical injury to another by means of a deadly or danger-

ous weapon[.]” Accordingly, attempted first-degree assault

requires that a defendant intentionally engage in conduct

that constitutes a substantial step toward causing serious

physical injury to another by means of a deadly or danger-

ous weapon. State v. O’Hara, 152 Or App 765, 768, 955 P2d

313, rev den, 327 Or 305 (1998).

Turning to menacing, a person violates ORS 163.190

“if by word or conduct the person intentionally attempts to

place another person in fear of imminent serious physical

injury.” On the one hand, while menacing requires proof of

the defendant’s intent to put the victim “in fear of imminent

serious physical injury,” attempted first-degree assault has

no such requirement. Compare ORS 163.190(1) with ORS

163.185(1)(a). In fact, it may be possible to commit attempted

first-degree assault without the victim ever perceiving the

danger, let alone fearing imminent physical injury. Cf. State

v. Rice, 307 Or App 274, 278, 476 P3d 961 (2020) (applying

Cite as 329 Or App 783 (2023) 787

ORS 161.067(1) and explaining that the crime of menacing

includes the element of placing the victim in fear of immi-

nent serious physical injury while the offense of pointing a

firearm at another “can be committed without the victim

even knowing that the gun was pointed or aimed in the vic-

tim’s direction”).

On the other hand, while attempted first-degree

assault requires that a defendant take a substantial step

toward causing serious physical injury to another, menac-

ing does not. Compare ORS 163.185 and ORS 161.405(1),

with ORS 163.190(1). In fact, menacing can occur through

a defendant’s mere use of words—without any conduct that

constitutes a step toward causing serious physical injury.

See ORS 163.190(1) (providing that menacing may occur “by

word or conduct”).

Because menacing and attempted first-degree

assault each require proof of an element that the other does

not, they do not merge. There was thus no obvious benefit

to petitioner from raising the argument and counsel did not

fail to “exercise reasonable professional skill and judgment”

when she did not argue for merger under ORS 161.067(1).

Turning to recklessly endangering another person,

ORS 163.195(1), that crime requires proof that “the person

recklessly engages in conduct which creates a substantial risk

of serious physical injury to another person.” As described

above, attempted first-degree assault requires that the

defendant intentionally engage in conduct that constitutes

a substantial step toward causing serious physical injury

to another by means of a deadly or dangerous weapon. ORS

163.185; ORS 161.405(1). To constitute a “substantial step”

toward commission of a crime, “the defendant’s conduct must

(1) advance the criminal purpose charged and (2) provide

some verification of the existence of that purpose.” State v.

Kimbrough, 364 Or 66, 73, 431 P3d 76 (2018) (internal quo-

tation marks omitted). Put another way, an attempt crime

focuses on the purpose of the individual’s conduct, not the

outcome of that conduct.

On the one hand, attempted first-degree assault

requires proof of an intentional mental state, whereas

788 Dorn-Privett v. Brown

reckless endangerment requires proof of only a reckless

mental state. While proof of an intentional mental state

establishes a reckless mental state, the reverse is not true.

ORS 161.115(3); see, e.g., State v. Chapman, 209 Or App 771,

779, 149 P3d 284 (2006), rev den, 342 Or 473 (2007) (apply-

ing the distinction).

On the other hand, reckless endangerment requires

that the defendant’s conduct create a substantial risk of

serious physical injury to another person, which attempted

first-degree assault does not require. Compare ORS 163.195

with ORS 163.185 and ORS 161.405(1). Conduct can con-

stitute a substantial step toward causing serious physical

injury without creating a substantial risk of that injury.

The inchoate crime of attempt does not require that the out-

come of the crime attempted—in this case, causing serious

physical injury to another as required for the crime of first-

degree assault, ORS 163.185—be likely or even possible; it

only requires that petitioner take steps with the criminal

purpose of achieving that outcome.

As was true of menacing and attempted first-degree

assault, because recklessly endangering another person

and attempted first-degree assault each require proof of an

element that the other does not, they do not merge. Again,

because raising a debatable, yet ultimately legally incorrect

argument does not provide any benefit to a petitioner, it is

not “so obvious” that “any lawyer exercising reasonable pro-

fessional skill and judgment” would have argued for merger

in petitioner’s case.

Because we determine that trial counsel’s represen-

tation did not fall below constitutional standards, we do not

address prejudice.

Affirmed.