Argued and Submitted September 16, 2013
CC CV090464; CA A146174. On review from the Court of Appeals. [*]
Erin C. Lagesen, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Rankin Johnson IV, Portland, argued the cause and filed the brief for respondent on review.
KISTLER, J. Walters, J., concurred in the judgment and filed an opinion. Baldwin, J., dissented and filed an opinion.
[356 Or. 656] Petitioner was convicted of first-degree robbery. After pursuing a direct appeal, he filed a petition for post-conviction relief, alleging that his trial counsel's performance had fallen below the minimum level of representation that the state and federal constitutions require. Among other things, petitioner claimed that his trial counsel was constitutionally inadequate for failing to ask for an instruction on the lesser-included offense of third-degree robbery. Essentially, he argued that his trial counsel either did not decide or reasonably could not have decided to forego giving the jury the option of convicting him of the lesser-included offense of third-degree robbery. The post-conviction court ruled that no reasonable counsel would have failed to ask for an instruction on that lesser-included offense and entered judgment in petitioner's favor.
The Court of Appeals affirmed the post-conviction court's judgment but on a different ground. Pereida-Alba v. Coursey, 252 Or.App. 66, 284 P.3d 1280 (2012). It reasoned that the post-conviction court could have found that petitioner's counsel inadvertently failed to ask for a lesser-included instruction. Id. at 71. The Court of Appeals concluded that the failure to make a conscious decision regarding that issue was sufficient, without more, to establish constitutionally inadequate assistance. Id. We allowed the state's petition for review to consider this recurring issue. We now reverse the Court of Appeals decision and the post-conviction court's judgment and remand this case to the circuit court for further proceedings.
The evidence at petitioner's post-conviction trial consisted of the transcript of his criminal trial, some entries from the trial court record, and the briefs that the parties had filed on direct appeal. We take the following facts from the transcript of the criminal trial. One day, petitioner went into a Shop'N Kart in Woodburn, Oregon. He was wearing a backpack with a " bright yellow Tweety Bird on it," and [356 Or. 657] the store's security guard kept an eye on petitioner because he was concerned that petitioner would take food from the store and put it into his backpack. The guard saw petitioner take two packages of Twinkies and a carton of flavored milk, crouch behind one of the shelves, put the flavored milk and Twinkies into his backpack, and leave the store without paying. The guard pursued petitioner, identified himself as a security guard, and showed petitioner a badge. Because the guard did not speak Spanish and petitioner did not speak English, a store employee went with the security guard and translated.
When the guard confronted petitioner, petitioner initially " started backing up with his hands up." Then, he " turned around and took off running." The guard caught up with petitioner, " took him to the ground[,] and put him in a headlock and a wristlock to put him in a submission [hold]." The guard told petitioner " don't run, stop resisting" and asked petitioner, through the store employee, if he were going to cooperate. When petitioner said that he would, the guard let petitioner up but kept him " in a wristlock and headlock because [the guard] did not want [petitioner] running from [him]." When asked whether petitioner had " attempt[ed] to pull away" as he walked petitioner back into the store, the guard answered, " He was still struggling with me, but once we got into the building he stopped the struggling."
Once in the building, the guard took petitioner upstairs to the office where petitioner sat in a chair holding his backpack. What happened next was disputed. The security guard testified that he tried to get hold of the backpack but that petitioner initially hugged the backpack to his chest. The guard testified that, when he attempted to get hold of the backpack a second time, petitioner " ripped" the backpack open, pulled out a gun, and pointed it directly at the guard for several seconds. According to the guard, petitioner was " holding [the gun] with his right hand, his hands [were] around the stock of the gun and his finger's on the trigger, and it's pointed right at me." At that point, the guard told petitioner to leave, which he did.
The store employee, who spoke Spanish and thus understood what petitioner had said, offered a different [356 Or. 658] perspective. He testified that, when the guard was trying to grab petitioner's backpack, petitioner said in Spanish, " [D]o you really want to see what I have, do you really want to see," as if petitioner were asking a question. As the security guard got closer, petitioner pulled the handgun out, pointed it for a second at the guard, and then pointed it at the ceiling. Petitioner " looked towards [the store employee] and he said he didn't want to do anything, pretty much saying he didn't want to harm anybody."
Petitioner's testimony essentially tracked the store employee's. He testified that, when the guard asked to see what was in his backpack, " he didn't want to show it to them because he knew there was a weapon in there." However, the guard " kept insisting that [petitioner] should take things out" of the backpack. So, he did. Petitioner testified that he took the gun out but did not point it at the guard. The guard, however, " got scared and [he] told [him] to leave." When asked why he left the store, petitioner replied, " They told me to leave."
Several days later, two officers saw petitioner wearing his backpack. They arrested him, and the state charged him with first-degree robbery. The indictment alleged:
" [Petitioner] * * * did unlawfully and knowingly while in the course of committing theft, with the intent of preventing and overcoming resistance to [his] taking of property and retention of the property after the taking, use and threaten the immediate use of physical force upon [the security guard] and use a dangerous weapon. The State further alleges [that petitioner] used or threatened the immediate use of a firearm."
At the trial on that charge, the parties' closing arguments focused on whether petitioner had used or threatened the use of a firearm with the intent of retaining the Twinkies and flavored milk. Relying on the security guard's testimony, the state argued that, when petitioner took the gun out of the backpack and pointed it at the guard, he had threatened the use of a firearm with the intent of retaining the stolen property. That was the point, the state argued, at which the robbery occurred.
[356 Or. 659] Defense counsel responded that there were two versions of the events: the security guard's and petitioner's. She acknowledged that petitioner had taken a gun out of his backpack but explained that, as petitioner testified, he had done so because the guard had insisted that he empty his backpack. She explained that the store employee's testimony corroborated petitioner's version of the events, and she reminded the jury that the store employee was the only person other than petitioner who understood what petitioner had said that day. Beyond that, she argued that, as a practical matter, no one would use deadly force to retain two packages of Twinkies and a carton of milk. In concluding, she acknowledged that petitioner had committed theft, but she argued that " we're not talking about a Theft II here; we're talking about a [R]obbery I, and that is a huge difference." She told the jurors that, when they considered the store employee's testimony, " you will find that in fact [petitioner] is not guilty of robbery in the first degree."
The trial court instructed the jury that:
" Oregon law provides that a person commits the crime of robbery in the first degree if, in the course of committing or attempting to commit theft, the person uses or threatens the immediate use of
physical force upon another person with the intent of preventing or overcoming resistance to his taking of the property or retention of the property immediately after the taking, and he uses or attempts to use a dangerous weapon."
Because first-degree robbery consists of third-degree robbery plus the use or attempted use of a dangerous weapon, ORS 164.415(1)(b), the trial court's instructions on first-degree robbery necessarily included the elements of third-degree robbery. See ORS 164.395(1)(b). Third-degree robbery, in [356 Or. 660] turn, includes the crime of theft or attempted theft, see id., and the trial court instructed the jury on the elements of theft in the course of defining what the state had to prove to establish first-degree robbery.
Defense counsel did not ask that the jury be instructed separately on either third-degree robbery or theft as lesser-included offenses, which would have permitted the jury to convict him of one or both those offenses. Rather, the instructions left it to the jury to decide whether petitioner was guilty of first-degree robbery or nothing. After considering the evidence, the jury found petitioner guilty of first-degree robbery.
As noted, petitioner filed a petition for post-conviction relief, alleging that his trial counsel had provided constitutionally inadequate assistance in failing to request an instruction on the lesser-included offense of third-degree robbery. (Petitioner did not allege that his trial counsel had been inadequate in failing to ask for an instruction on the lesser-included offense of theft.) The state countered that, given the store employee's favorable testimony, petitioner's trial counsel reasonably could have made a tactical choice to limit the jury's options to convicting petitioner of first-degree robbery or acquitting him. In the state's view, the evidence that petitioner had used a gun to retain the Twinkies and flavored milk was weak, which made it reasonable to put the jury to the choice of convicting petitioner of first-degree robbery or nothing.
The post-conviction court ruled that, when the state claims that a petitioner's trial counsel made a reasonable tactical choice, " the petitioner has the burden of proving that no reasonably qualified defense attorney would have made the choice complained about in the post conviction proceeding." Applying that standard, the court held that, " [s]hort of evidence that the petitioner in this case instructed the trial attorney to take an 'all or nothing' approach as she did (and there is no such evidence) I simply cannot imagine why defense counsel would not have at least asked for at least a Robbery III [instruction]." Having concluded that no reasonable defense attorney would have failed to ask for that [356 Or. 661] instruction, the court granted petitioner post-conviction relief.
The Court of Appeals affirmed but on a different ground. It observed that the mandatory minimum sentence for first-degree robbery is 90 months while the guidelines sentence for third-degree robbery ranges from probation to 16 months. Pereida-Alba, 252 Or.App. at 71. Explaining that the evidence permitted petitioner to argue that he had committed third-degree robbery but not first-degree robbery, the court reasoned:
" The upshot is that there was no evident downside to petitioner from requesting an instruction on third-degree robbery and a significant potential benefit to him from doing so."
Id. The Court of Appeals concluded that, given its assessment of the potential risks and benefits, " the post-conviction court reasonably could [and implicitly did] infer that the defense attorney's failure to request an instruction on third-degree robbery was attributable to the attorney's failure to consider whether to make such a request." Id. The court also concluded, without explanation, that the failure to consider whether to ask for an instruction on third-degree robbery established inadequate assistance. Id. Finally, the Court of Appeals concluded that trial counsel's omission prejudiced petitioner because " the jury did not have a complete statement of the law." Id. at 72.
Under Oregon law, a petitioner claiming inadequate assistance of counsel must prove that his or her trial counsel failed to exercise reasonable professional skill and judgment and that, because of that failure, the petitioner [356 Or. 662] suffered prejudice. Gable v. State of Oregon, 353 Or. 750, 758, 305 P.3d 85, cert den, 134 S.Ct. 651, 187 L.Ed.2d 430 (2013). Similarly, under federal law, a petitioner must establish that " counsel's performance was deficient" and that " the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, petitioner contends that his counsel's performance was deficient because she either did not make a conscious choice to forego asking for an instruction on third-degree robbery or, if she made that choice, no reasonable counsel would have done so.
This court has recognized that lawyers often face competing choices in deciding how to investigate and try their cases. See, e.g., Montez v. Czerniak, 355 Or. 1, 7, 322 P.3d 487(2014); Stevens v. State of Oregon, 322 Or. 101, 109, 902 P.2d 1137 (1995). We have been careful not to second-guess a lawyer's tactical decisions with the benefit of hindsight; rather, we have asked whether those decisions reflected, at the time they were made, a reasonable exercise of professional skill and judgment. Krummacher v. Gierloff, 290 Or. 867, 875, 627 P.2d 458 (1981); Stevens, 322 Or. at 108.
In a post-conviction proceeding, the petitioner has the burden of proving both elements of an inadequate assistance claim: (1) the failure to exercise reasonable professional skill and (2) prejudice. ORS 138.620(2); Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). When, as in this case, the state argues that the petitioner's trial counsel made a reasonable tactical choice, that argument does not shift the burden of production and proof; rather, as petitioner acknowledges, the burden of production and proof remains with him.
With those principles in mind, we turn to the arguments that petitioner raises on review. Petitioner's initial argument tracks the Court of Appeals' reasoning. He contends that, because no reasonable counsel would have failed to ask for an instruction on the lesser-included charge of third-degree robbery, the post-conviction court could have found that his counsel simply failed to consider that option, a failure that petitioner asserts automatically establishes inadequate assistance. Petitioner's second argument [356 Or. 663] tracks the post-conviction court's reasoning. He argues that, even if his counsel made a conscious decision to forego asking for an instruction on third-degree robbery, the disparity between the sentences for first- and third-degree robbery was so great that no reasonable counsel would have made that choice.
We begin with petitioner's second argument. If the post-conviction court were correct that no reasonable counsel would have chosen to forego asking for an instruction on third-degree robbery, then it is immaterial whether ...