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Harbert v. Franke

Court of Appeals of Oregon

March 15, 2017

NATHANIEL HARBERT, Petitioner-Appellant,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Submitted November 3, 2015

         Umatilla County Circuit Court CV120509 Jack A. Billings, Senior Judge.

          Ryan T. O'Connor and O'Connor Weber LLP fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carolyn Alexander, Assistant Attorney General, fled the brief for respondent.

          Before DeVore, Presiding Judge, and Hadlock, Chief Judge, and Flynn, Judge.

         Case Summary: Petitioner appeals from a judgment denying his claims for post-conviction relief. Petitioner argues that he was denied adequate assistance of appellate counsel because his appellate lawyer failed to raise, as plain error, the trial court's decision to proceed to a bench trial on petitioner's two consolidated cases with a written jury waiver that listed only one of the case numbers. Held: The post-conviction court did not err. Considering the state of the law at the time that appellate counsel fled its brief, petitioner has not demonstrated that every appellate counsel exercising reasonable professional skill and judgment would have assigned error to the trial court's decision to proceed to a bench trial on both cases.

         Affirmed.

          FLYNN, J.

         Petitioner appeals from a judgment denying his claims for post-conviction relief. Petitioner argues that he was denied adequate assistance of appellate counsel pursuant to Article I, section 11, of the Oregon Constitution, because his appellate lawyer failed to raise, as plain error, the trial court's decision to proceed to a bench trial on petitioner's two consolidated cases with a written jury trial waiver that listed only one of the case numbers.[1] We conclude that petitioner has failed to demonstrate that every appellate attorney exercising reasonable professional skill and judgment would have raised an unpreserved challenge to the jury trial waiver in this case.[2] Therefore, we affirm.

         The relevant facts are undisputed and mostly procedural. In September 2008, petitioner was indicted on four counts of rape in the second degree, ORS 163.365; on April 21, 2009, petitioner was indicted on two counts of witness tampering, ORS 162.285. Prior to his indictment for witness tampering, petitioner executed two writings waiving his right to a jury trial. The first was a signed, handwritten statement dated April 13, 2009, that stated, "I wish to waive my right to a jury trial and request to have my trial before a judge alone." The second was a waiver of jury trial form signed by petitioner and his trial counsel on April 14, 2009, with the case number pertaining to the rape case at the top. The box was checked next to the following statement: "I WAIVE my rights to have a jury decide whether I am guilty or not guilty of the crime(s) charged and any facts which can result in a greater sentence than is presumed." The state's motion to consolidate the rape case and the witness tampering case was granted a month later, on May 19, 2009. The waiver of jury trial form that petitioner had signed on April 14, 2009, listing only the case number pertaining to the rape case, was filed 10 days after the witness tampering case had been consolidated with the rape case.

         On the first day of trial on the joined cases, the trial court conducted a colloquy with petitioner regarding his right to a jury trial:

"THE COURT: Okay. So you understand by doing that you gave up your right to have a jury trial. Okay. And we'll go ahead with a bench trial at this time. Based on everything I know, I find that you're freely and voluntarily doing so. Any other pre-trial matters, [defense counsel]?
"[DEFENSE COUNSEL]: I don't think so, Your Honor.
"[PROSECUTOR]: And the only thing just to clarify, I think the jury waiver was prior to the Tampering charge, and so if we could just put on the record that he's also- the jury waiver applies to the Tampering case ...

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