February 4, 2015
JENNIFER ANN COX, Petitioner-Respondent,
Nancy HOWTON, Superintendent, Coffee Creek Correctional Facility, Defendant-Appellant
Argued and Submitted July 9, 2014
Washington County Circuit Court. C100159CV. Thomas W. Kohl, Judge.
Pamela J. Walsh, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Ryan O'Connor argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[268 Or.App. 841] DE MUNIZ, S. J.
Defendant appeals a judgment granting petitioner post-conviction relief, arguing that that the post-conviction court applied the incorrect legal standard for determining prejudice. We agree and reverse and remand to the post-conviction court for further proceedings.
Our review in post-conviction proceedings is for errors of law. Chew v. State, 121 Or.App. 474, 476, 855 P.2d 1120 (1993). Under that standard, we are bound by the post-conviction court's findings of fact when the evidence in the record supports those findings. Brock v. Wright, 98 Or.App. 323, 326, 778 P.2d 999 (1989).
The facts relevant to this appeal are largely procedural and undisputed. Petitioner pleaded guilty to the charges of second-degree assault, ORS 163.175, strangulation, ORS 163.187, and assaulting a public safety officer, ORS 163.208. She subsequently sought post-conviction relief, alleging that her guilty pleas were not knowing and voluntary because her trial counsel rendered inadequate assistance in that he misunderstood the culpability requirements for the crimes with which petitioner was charged, failed to adequately advise petitioner about a potential " defense" under ORS 161.125(1), and misunderstood which party had the burden of proof for the aforementioned " defense."  Following a hearing, the post-conviction court concluded that petitioner was entitled to post-conviction relief because petitioner's trial counsel incorrectly advised petitioner that she would have the burden of proof regarding her inability to form the mental state element for the crimes with which she was charged, failed to follow up with a defense expert, Dr. Prescott, regarding petitioner's
ability to form the prerequisite mental state, and that those failures prejudiced petitioner because they had a " substantial tendency * * * to affect petitioner's decision to accept the plea offer."
[268 Or.App. 842] On appeal, defendant contends that, in granting post-conviction relief, the post-conviction court applied an incorrect prejudice standard in concluding that " trial counsel's failure to correctly advise petitioner of the burden of proof and culpability requirement and failure to follow up with Dr[.] Prescott on the issue of knowingly, given the true burden of proof, had a tendency--in fact a substantial tendency--to affect petitioner's decision to accept the plea offer." According to defendant, in Moen v. Peterson, 312 Or. 503, 513, 824 P.2d 404 (1991), the Oregon Supreme Court held that, to prove prejudice, a post-conviction petitioner that has pleaded guilty to the underlying crime must prove, by a preponderance of the evidence, that he or she would not have entered the guilty plea were it not for counsel's inadequate assistance. We agree.
In Moen, the petitioner had alleged that his no-contest plea was void because his counsel had not informed him that the trial court might impose a minimum sentence. The Supreme Court concluded that,
" [i]n order to prevail in this case, petitioner must show by a preponderance of the evidence that, had counsel informed [the petitioner] of the possibility of a minimum sentence, or had he otherwise been aware of it, he would not have pleaded no contest. Our holding is consistent with ORS 138.530(1) (a), which directs the court to grant post-conviction relief only when 'a substantial denial' of constitutional rights occurred in the proceedings resulting in petitioner's conviction, which renders the conviction void."
Moen, 312 Or. at 513 (footnote omitted).
In accordance with Moen, we have consistently required post-conviction petitioners who have pleaded guilty to an underlying crime to prove by a preponderance of the evidence that they would not have pleaded guilty had they received adequate assistance of counsel. See, e.g., Rodriguez-Moreno v. State of Oregon, 208 Or.App. 659, 667, 145 P.3d 256 [268 Or.App. 843] (2006), rev den, 343 Or. 159, 164 P.3d 1160 (2007) (denying post-conviction relief because " the evidence does not support a finding that there was a reasonable probability that, but for counsel's error, petitioner would not have entered into the plea agreement" ); Stroup v. Hill, 196 Or.App. 565, 573, 103 P.3d 1157 (2004), rev den, 338 Or. 432, 110 P.3d 1105 (2005) (" Petitioner does not assert that he would not have entered into the eventual plea agreement had he known that his sentence exceeded the statutory maximum." ); Chew, 121 Or.App. at 479 (" Petitioner must prove by a preponderance of the evidence that he would not have pleaded guilty if his attorney had properly advised him." ).
Here, as noted earlier, the post-conviction court concluded that petitioner had established that she was prejudiced and entitled to post-conviction relief because trial counsel's mistaken advice had a " tendency" to " affect petitioner's decision to accept the plea offer." In doing so the post-conviction court erred. However, we reject defendant's argument that we should conclude at this stage of the proceedings that petitioner is not entitled to post-conviction relief. A close reading of the post-conviction court's findings and legal conclusion reveals that it did not resolve whether, had petitioner been properly advised, she would have rejected the plea offer and proceeded to trial. Under the circumstances, it is for the post-conviction court in the first instance to decide that issue. See Moen, 312 Or. at 513-14 (remanding to the post-conviction court for the factfinder to determine whether, under the proper legal standard, petitioner was prejudiced). Accordingly, we remand to the post-conviction
court for further proceedings consistent with this opinion.
Reversed and remanded.