Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Welsh v. Taylor

Court of Appeals of Oregon

March 15, 2017

DALLAS LEE WELSH, Petitioner-Appellant,
v.
Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Submitted March 22, 2016

         Umatilla County Circuit Court CV131714; Jack A. Billings, Senior Judge.

          Jed Peterson and O'Connor Weber LLP fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary:

         Petitioner appeals from a judgment denying his request for post-conviction relief from one count of unlawful delivery of methamphetamine within 1, 000 feet of a school, one count of unlawful delivery of heroin within 1, 000 feet of a school, and three counts of felon in possession of a firearm. He contends that he received inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment of the United States Constitution. Specifically, he argues that trial counsel was inadequate for failing to argue that the trial court should have applied the "shift-to-I" rule in imposing consecutive sentences on his criminal convictions. Defendant superintendent counters that the shift-to-I rule is inapplicable because petitioner's convictions did not arise from a single "criminal episode" under ORS 131.505(4).

         Held: The post-conviction court did not err in denying petitioner's request for relief because it correctly determined that the shift-to-I rule did not apply to petitioner's convictions and that trial counsel did not provide inadequate assistance in failing to argue that the rule did apply. Further, petitioner was not prejudiced by trial counsel's decision not to argue that the shift-to-I rule applied to his case.

         Affirmed.

          DEHOOG, J.

         Petitioner was convicted of one count of unlawful delivery of methamphetamine within 1, 000 feet of a school, ORS 475.892, one count of unlawful delivery of heroin within 1, 000 feet of a school, ORS 475.852, and three counts of felon in possession of a firearm, ORS 166.250(c).[1] He appeals from a judgment denying his petition for post-conviction relief from those convictions on the ground that he received inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Petitioner contends that trial counsel was inadequate for failing to argue that the trial court should have applied the "shift-to-I" rule in imposing consecutive sentences. Defendant superintendent counters that the shift-to-I rule is inapplicable because petitioner's convictions did not arise from a single "criminal episode" under ORS 131.505(4).[2] For the reasons set forth below, we conclude that the post-conviction court correctly determined that the shift-to-1 rule did not apply to petitioner's convictions, and that trial counsel did not provide inadequate assistance in failing to argue that the rule did apply. Further, we conclude that the post-conviction court correctly determined that petitioner was not prejudiced by trial counsel's decision not to make that argument. Accordingly, we affirm the court's denial of post-conviction relief.

         We review the denial of a post-conviction claim of inadequate assistance of counsel for legal error. Yeager v. Maass, 93 Or.App. 561, 564, 763 P.2d 184 (1988). We are bound by the post-conviction court's findings of historical fact if there is evidence in the record to support them. Lichau v. Baldwin. 333 Or 350, 359, 39 P.3d 851 (2002). If the post-conviction court did not make express factual findings, and "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 [court's] ultimate conclusion." Ball v. Gladden, 250 Or 485, 487, 443 P.2d 621 (1968).

         We state the following facts in accordance with those standards. Salem police officers became interested in petitioner's apartment after the manager reported an unusual number of people entering and leaving the apartment. When officers later entered the residence to execute a warrant for petitioner's arrest, they observed evidence of criminal activity, including "methamphetamine and guns all over the place, " which led to the issuance of a search warrant for the residence. In the course of the ensuing search of the home for methamphetamine, officers also found a large amount of heroin in two backpacks. The search of petitioner's apartment resulted in the seizure of 113.4 grams of heroin, 45.9 grams of methamphetamine, scales, packaging materials, detailed drug records, $3, 000 in cash, and six firearms. When officers asked petitioner what items they would find in his apartment, he claimed not to know exactly what they would find, but said that "everything" in the home belonged to him. He explained that the firearms had been given to him either as "collateral" or in trade for drugs. He also said that all of the firearms in the apartment were his and were "for show." Petitioner told the officers that he had been selling methamphetamine for only a short period of time, and that the $3, 000 was money that he had collected to "re-up, " or purchase more methamphetamine.

         Petitioner was subsequently indicted for 10 felony drug and weapon offenses based on evidence found during the search of his home. Pursuant to plea negotiations, petitioner entered guilty pleas to Count 1, delivery of methamphetamine within 1, 000 feet of a school, Count 3, delivery of heroin within 1, 000 feet of a school, and Counts 5, 7, and 10, felon in possession of a firearm, and the state moved to dismiss the remaining charges. Under the terms of the plea agreement, both parties were free to make recommendations regarding sentencing to the trial court. At sentencing, the state argued for the maximum amount of prison time available under the sentencing guidelines on each count, to be served consecutively, for an aggregate sentence of 180 months. Defense counsel initially argued for a 41-month prison term on both Count 1 and Count 3 to be served consecutively, with an additional 25-month term to run concurrently on Counts 5, 7, and 10, but consecutively to Counts 1 and 3, for an aggregate sentence of 107 months' imprisonment. Counsel argued that,

"although these were separate crimes, the guns-you know, we pled to separate guns, it was all part of a similar situation, and consequently should run concurrent."

         The trial court imposed an aggregate sentence of 120 months' incarceration and 36 months of post-prison supervision. Specifically, on Count 1, the methamphetamine charge, the court found that petitioner's sentencing grid block was an 8A and imposed 45 months' imprisonment; on Count 3, the heroin charge, the court likewise calculated petitioner's grid block to be 8A and imposed 45 months' imprisonment to be served consecutively to Count 1; and on Counts 5, 7, and 10, the firearm charges, petitioner's grid block was a 6A and the court imposed 30 months' imprisonment to be served concurrently with each other but consecutively to Counts 1 and 3. After the court imposed that sentence, the following colloquy occurred:

"[TRIAL COUNSEL]: I guess for the purposes of the record, we would object to the consecutive sentences on the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.