Argued and Submitted July 24, 2014
Marion County Circuit Court. 11C10900. Claudia M. Burton, Judge.
Rankin Johnson IV argued the cause and filed the brief for appellant.
Paul L. Smith, Attorney-in-Charge, argued the cause for respondent. On the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[268 Or.App. 408] GARRETT, J.
In this appeal, petitioner challenges the postconviction court's order denying his motion for summary judgment and granting defendant's cross-motion for summary judgment. The summary judgment motions concerned whether petitioner's criminal trial counsel was constitutionally inadequate for agreeing to a change in the terms of a plea agreement that, according to petitioner, resulted in an enlargement of petitioner's total sentence from 152 months to 180 months. The post-conviction court granted summary judgment to defendant on the ground that petitioner could not demonstrate prejudice, reasoning that even if petitioner's trial counsel had objected to the change, the sentencing court would have imposed the same total sentence. We conclude that the trial court did not err in granting summary judgment for defendant because there is no genuine dispute that the sentencing court would have imposed the total 180-month sentence regardless of whether petitioner's counsel objected to the change. That conclusion obviates the need to address the denial of petitioner's motion for summary judgment because petitioner must establish prejudice in order to prevail on his claim that counsel was constitutionally inadequate. Cf. Northwest Natural Gas Co. v. City of Gresham, 264 Or.App. 34, 39, 330 P.3d 65, rev allowed, 356 Or. 516, 340 P.3d 47 (2014) (noting that, in an appeal from a judgment resulting from cross-motions for summary
judgment, if both the granting of one motion and the denial of other are assigned as error, then both are subject to review). Accordingly, we affirm.
We discuss briefly the undisputed facts relevant to this appeal. The victim did not know petitioner, her biological father, until she was 16 and moved into petitioner's home. Soon after the victim moved in with petitioner, petitioner repeatedly engaged in sexual conduct with her, which was nonconsensual because of her age. That conduct continued after the victim turned 18 and after he was confronted by police officers at the behest of the victim's grandmother. Eventually the victim became pregnant and had petitioner's child. About 20 years earlier, petitioner, while an adult, had impregnated another underage girl. Petitioner was arrested and charged with 75 counts of second-degree sexual assault [268 Or.App. 409] and incest. He pleaded guilty to five counts of second-degree sexual assault and five counts of incest, for which the sentencing court sentenced him to a total of 180 months' imprisonment.
Petitioner has previously come to us for review of his sentence. On direct appeal, in State v. Baker, 233 Or.App. 536, 226 P.3d 125 (2010), he challenged the constitutionality of his sentences, under Article I, section 16, arguing that they were disproportionately long compared to sentences for other, more serious crimes. To resolve his claimed error--that his sentences were constitutionally disproportionate--we applied the factors set out in State v. Rodriguez/Buck, 347 Or. 46, 58, 217 P.3d 659 (2009). When we compared the offenses to the penalty viewed through the lens of the conduct's harm to society or the victim (the first Rodriguez/Buck factor), we noted that petitioner's " conduct--engaging in sexual intercourse with his child beginning when she was a minor--is egregious." Baker, 233 Or.App. at 542. As to the second Rodriguez/Buck factor, a comparison of the penalty to related offenses, we reasoned that petitioner's sentences resulting from 10 convictions could not properly be compared to a sentence resulting from one conviction. Baker, 233 Or.App. at 543. And for the third factor, petitioner's criminal history, we observed that his behavior followed the general rule that " sex abuse perpetrators repeatedly abuse their victims" because petitioner's " conduct persisted even after the police alerted him that they were investigating the sexual relationship. Moreover, defendant has a history of second-degree sexual abuse apart from this relationship: He has previously impregnated another minor female." Id. We therefore concluded that his sentence was not constitutionally disproportionate. Id.
This post-conviction case concerns the method by which the sentencing court reached the 15-year total sentence. Petitioner was indicted on 21 counts of second-degree [268 Or.App. 410] sexual abuse, ORS 163.425 (subjecting another person to sexual intercourse where the other person is unable to consent because she is under 18 years of age), and 54 counts of incest, ORS 163.525 (engaging in sexual intercourse with a person known to be one's child). The sexual abuse counts were for the conduct that occurred prior to the victim's 18th birthday; the incest counts were for the conduct that occurred after.
Petitioner entered into a plea agreement in which he pleaded guilty to " Sexual Abuse II (Cts 1-5); Incest (Cts 70-74)," i.e., five counts of second-degree sexual abuse and five counts of incest, and the state agreed to dismiss the remaining 65 counts. As alleged in the indictment, the five sexual abuse counts to which petitioner pleaded guilty (Counts 1 through 5) occurred prior to the incest counts (Counts 70 through 74). Additionally, petitioner agreed to the following terms:
" 11. I declare that no [government official], nor my lawyer, nor any other person * * * has made any promise or suggestion of any kind to me, or within my knowledge to anyone else, that I will receive a lighter sentence, or probation, or any other form
of leniency if I plead guilty, except State will dismiss the remaining 65 charges, and open sentencing, I agree that each count is a separate offense.
" 13. I plead guilty and respectfully request the Court to accept my plea of guilty and to have the Clerk enter my plea of guilty on the factual basis of On five separate occasions between 1/4/04 and 8/2/04, I unlawfully and intentionally subjected [the victim] to sexual intercourse to which she could not consent due to her age (Cts 1-5)[.] On five separate occasions between 8/3/04 and 6/30/05 after [the victim] was 18 years old, I unlawfully and knowingly engaged in sexual intercourse with her, knowing that she was my daughter. * * *"
(Emphases added; handwritten text in boldface.) In Addendum A to the plea agreement, petitioner initialed the following term:
" I waive my right under Blakely v. Washington to have a jury make all factual findings that affect the length of [268 Or.App. 411] my sentence, including facts which the court may find are aggravating factors, and stipulate (agree to) the following sentence EACH COUNT IS A SEPARATE AND DISTINCT CRIMINAL ACT AND MAY BE SENTENCED CONSECUTIVELY."
(Emphasis added; handwritten text in boldface.) To summarize, petitioner pleaded guilty to five counts each of second-degree sexual abuse and incest, waived his right to have a jury make factual findings for any aggravating factors that justified departing from presumptive sentences, and admitted that each count was a separate offense, act, or occasion. Sentencing was not agreed to and was left open.
At sentencing, the state expressed dissatisfaction with the sentence that petitioner would receive if the sentence was based on the order of the counts as pleaded. Counts 70 through 74 occurred after the victim's 18th birthday and, therefore, were assessed a crime-seriousness level of I under the sentencing guidelines (instead of the level VI that applies when the victim is under 18). The state said that its intention had been to have petitioner plead guilty to five counts of level VI incest, not level I incest. During a discussion among the state, petitioner's counsel, and the sentencing court, the court observed that it could impose a longer total sentence by sentencing petitioner on the incest counts first, which would increase petitioner's criminal history score for ...