Argued and Submitted March 4, 2013
Marion County Circuit Court. 07C21678. Claudia M. Burton, Judge.
Erin Galli argued the cause for appellant. With her on the brief was Chilton & Galli, LLC.
Patrick M. Ebbett, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[264 Or.App. 330] WOLLHEIM, J.
Petitioner appeals a general judgment denying his petition for post-conviction relief. He asserts that the post-conviction court erred in failing to conclude that he was denied adequate assistance of counsel under Article I, section 11, of the Oregon Constitution, and under the Sixth Amendment to the United States Constitution. We affirm.
Petitioner was convicted by a jury of first-degree kidnapping, ORS 163.235, and attempted first-degree rape, ORS 163.375. After an unsuccessful appeal, petitioner brought this petition for post-conviction relief, claiming inadequate assistance of trial counsel in 100 separate instances, inadequate assistance of appellate counsel in 13 separate instances, prosecutorial misconduct in three separate instances, and trial court error in 21 separate instances. After a trial at which petitioner offered his deposition testimony, the post-conviction court denied petitioner's claim. On appeal, petitioner assigns error to the post-conviction court's decision on only three of his arguments of inadequate assistance of trial counsel. Those arguments pertain to whether his trial counsel performed inadequately by failing to object to the testimony of two women who encountered petitioner on the same night that petitioner committed the acts against the victim and by failing to allow petitioner to testify at the criminal trial.
We begin our review by noting one aspect of the post-conviction court's uling that affects how we review the assorted arguments. In this case, the post-conviction court made detailed findings of fact on petitioner's argument pertaining to whether trial counsel had ignored petitioner's desire to testify at trial. As to all the other arguments, the post-conviction court denied them " for the reasons set forth in defendant's [(the state's)] trial memorandum." Petitioner's first two arguments, pertaining to the admission of testimony of the two women, were among those arguments about which the court made limited findings of fact. Our review [264 Or.App. 331] of post-conviction proceedings is for errors of law. Peiffer v. Hoyt, 339 Or. 649, 660, 125 P.3d 734 (2005). We are bound by a post-conviction court's findings of fact if supported by evidence in the record. Chew v. State of Oregon, 121 Or.App. 474, 476, 855 P.2d 1120, rev den, 318 Or. 24, 862 P.2d 1304 (1993). As to the first two arguments, where " there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion made by the trial court." Id. at 476-77.
With that in mind, we recite the facts pertinent to petitioner's arguments regarding the testimonial evidence. The victim was a 19-year-old woman who had been at a wedding reception in downtown Baker City, where she had consumed enough alcohol to make her heavily intoxicated. Around midnight, she joined a group that was leaving the reception to go to other bars in the same area. She and another member of the group got in an argument as they were walking toward the bars, and she left the group, eventually sitting down by herself in a downtown alleyway.
The next thing the victim could remember was waking up in a hotel room where she was lying on a bed. She went to the door to leave the room, when petitioner, whom she had not seen in the room, stopped her and pushed her up against the wall and began choking her with enough strength that she had trouble breathing. He told her to stop struggling, and, once she did, he released her and told her that she had consented to have sexual intercourse with him and she could not leave until she did. The victim told petitioner she would die first before she agreed to his request for sexual intercourse. Petitioner then requested that the victim give him a " blow job" instead, which she also refused. For the next few hours, petitioner kept the victim in the room with him, repeatedly insisting that she had agreed to have sexual intercourse with him. The victim
conversed with petitioner during this time, telling him that he could not keep her locked in this room, to which he replied that he could not let her go, because she would run, and " they always run." The victim tried to escape two or three times more, but, each time she tried to unlock the door, petitioner [264 Or.App. 332] ...