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Aponte v. State

Court of Appeals of Oregon

July 10, 2013

RICHARD R. APONTE, Petitioner-Appellant,
STATE OF OREGON, Defendant-Respondent.

Submitted on April 23, 2013.

Multnomah County Circuit Court 071012744, Cheryl A. Albrecht, Judge.

James N. Varner filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.

Before Haselton, Chief Judge, and Brewer, Judge pro tempore.


Petitioner, who, after he entered a no-contest plea, was convicted of aggravated murder, ORS 163.095, and sentenced to life in prison, appeals from a judgment denying post-conviction relief. ORS 138.530. Petitioner asserts that he received ineffective assistance of counsel because his defense counsel failed to investigate and pursue a defense of self-defense. We affirm.

"In reviewing the decision of the post-conviction court, we are bound by its factual findings that are supported by evidence in the record." Harris v. Morrow, 186 Or.App. 29, 33, 63 P.3d 581, rev den, 335 Or 479 (2003). We review the court's legal conclusions for errors of law. Ashley v. Hoyt, 139 Or.App. 385, 391, 912 P.2d 393 (1996).

On appeal, petitioner's essential contention is that his trial counsel provided ineffective assistance by failing to investigate and pursue a defense of self-defense. The state responds, simply, that petitioner's contention on appeal reduces to challenges to the post-conviction court's factual findings--viz., that petitioner's trial counsel repeatedly and adequately advised him as to potential defenses, and that petitioner insisted on opposing any continuances and on entering a no-contest plea. The state emphasizes that, on appeal, petitioner does not contend that those findings were unsupported by the evidence.

The material facts, as found by the post-conviction court and substantiated by evidence in the post-conviction record, are as follows. On September 24, 1995, Portland police found the body of a man in a motel room who had died as a result of multiple blows to the head. The police failed to locate a suspect, and the case remained unsolved until 1998, when Florida police, who were investigating petitioner for a separate murder in that state, informed Portland police that petitioner may have been involved in a Portland motel murder. A subsequent DNA comparison linked petitioner to cigarettes found in the motel room with the dead body. Petitioner later admitted to "having gone out drinking with the victim, that he had gotten into a fight with the victim over a chess game, and that he had beaten him severely and had taken off with some of his property."

On January 24, 2006, the state charged petitioner with aggravated murder and robbery. Petitioner, who was then serving a life sentence in Florida for second-degree murder, requested a speedy trial in Oregon under the Interstate Agreement on Detainers (IAD), ORS 135.775 (1987), amended by Or Laws 2013, ch 360, § 5. Defense counsel was appointed on September 25, 2006. The following day, during a telephone conversation, petitioner informed his trial counsel that he would not waive his right to be tried within the IAD time limit. The two men discussed the trial process, including defendant's right to an investigation into the alleged crime and potential mitigation facts. That discussion included the subject of self-defense. On October 2, defense counsel and petitioner reviewed the state's discovery and, again, discussed the issue of self-defense and whether there was theft involved in the alleged incident. At a status hearing on October 6, the trial court advised petitioner that aggravated murder defenses normally take a year or two, and that his lawyer would need to review discovery, prepare for expert testimony, and to prepare for the penalty phase. Nevertheless, that same day, petitioner again told his trial counsel that he would not waive his right to be tried within the time limits of the IAD. A trial date was set for November 9.

Defense counsel met with petitioner again on October 11 and advised petitioner that he would need additional time, that aggravated murder cases require substantial preparation for both innocence/guilt and potential penalty phases, and that it generally takes 18 months to two years, if not longer, for aggravated murder cases to come to trial. They also discussed the state's case against petitioner, including the concept of an "imperfect self-defense" and intoxication in relation to the mental state element of the charges. Defense counsel again explained defendant's right to co-counsel, investigation, expert testimony, possible mitigation evidence, and hearing-related matters. Nevertheless, petitioner maintained his position that he wanted to be tried within the IAD deadline because, as defense counsel recounted, "he wanted to 'get the case over with, ' * * * he wanted to apologize to the victim's family, and * * * he did not want to put his own family through the process."

At an October 12 settlement conference, petitioner indicated that he was willing to plead no contest to aggravated murder. On October 19, after final plea negotiations with the prosecutor, petitioner confirmed that he was willing to enter a plea to aggravated murder, with a sentence of life imprisonment without the possibility of parole, consecutive to his current sentence, and stated that he "considered the case done." The next day, defense counsel reviewed the plea petition with petitioner line by line, and petitioner indicated that he understood and did not want more time to investigate. On October 20, 2006, petitioner entered a plea of no contest to aggravated murder. At that point, according to trial counsel, "[a]ny investigation of self-defense stopped."

After petitioner entered his plea, the prosecutor asked the court to "put additionally on the record and go over with [petitioner] his decision on the timeframe that we were looking at here, * * * so there isn't any later attack against ...

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