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Docken v. Myrick

Court of Appeals of Oregon

August 16, 2017

KENT WALTER DOCKEN, Petitioner-Appellant,
v.
John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Argued and submitted August 10, 2016

         Umatilla County Circuit Court CV130707; Jack A. Billings, Senior Judge.

          Jed Peterson argued the cause for appellant. With him on the briefs was O'Connor Weber LLP.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeHoog, Presiding Judge, and Shorr, Judge, and Sercombe, Senior Judge. [*]

         [287 Or. 261] Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief. On appeal, petitioner assigns error to the post-conviction court's decision to overrule his hearsay objection to certain statements presented in an affidavit from the prosecutor in his underlying criminal case. Defendant, the superintendent of the Two Rivers Correctional Institution, concedes that error. Further, petitioner claims that the post-conviction court erred when it denied his eighth claim for relief-that his trial counsel provided inadequate assistance when he failed to attend a pretrial mental health evaluation ordered by the state. Petitioner argues that the post-conviction court applied the wrong standard of prejudice when denying that claim. Defendant cross-assigns error to the post-conviction court's denial of defendant's eighth claim for relief insofar as the post-conviction court concluded that petitioner's trial counsel's failure to attend the state's pretrial mental health evaluation reflected a lack of professional skill and judgment.

         Held:

         The post-conviction court erred when it both overruled petitioner's hearsay objection and when it denied defendant's eighth claim for post-conviction relief. Although the post-conviction court correctly concluded that petitioner's trial counsel failed to exercise reasonable professional skill and judgment by not attending the state's pretrial mental health evaluation of petitioner, it applied the wrong standard of prejudice when it denied petitioner's claim.

         Reversed and remanded as to petitioner's second through ninth claims for relief; otherwise affirmed.

         [287 Or. 262] SHORR, J.

         Petitioner appeals a judgment denying his petition for post-conviction relief. In that petition, petitioner alleges that his trial counsel was inadequate when he made a number of errors during the investigation leading up to the criminal trial underlying this case. On appeal, petitioner asserts eight assignments of error; however, we write only to address petitioner's first two assignments, the resolution of which makes consideration of his remaining six assignments unnecessary.

         In petitioner's first assignment of error, he argues that the post-conviction court wrongly overruled his hearsay objection to certain statements presented in an affidavit from the prosecutor in his underlying criminal case. Defendant John Myrick, superintendent of the Two Rivers Correctional Institution (the state), concedes that the post-conviction court erred. For the reasons stated below, we accept the state's concession and reverse and remand the post-conviction court's denial of all of petitioner's claims that relate to his trial counsel's failure to (1) adequately investigate petitioner's voluntary intoxication defense and (2) present sufficient evidence in support of that defense (petitioner's second, third, fourth, fifth, sixth, seventh, and ninth claims for relief).

         In petitioner's second assignment of error, he contends that the post-conviction court erred in denying his eighth claim for relief-that his trial counsel provided inadequate assistance when he failed to attend a pretrial mental health evaluation ordered by the state. Specifically, petitioner argues that the post-conviction court erroneously applied the wrong standard of prejudice when evaluating that claim. In response, the state cross-assigns error, claiming that the post-conviction court erroneously concluded that petitioner's trial counsel's failure to attend the mental health evaluation reflected a lack of reasonable professional skill and judgment, and, in the alternative, argues that petitioner's argument that the post-conviction court applied the wrong standard of prejudice is unpreserved. As we discuss below, we conclude that the post-conviction court correctly determined that trial counsel's failure to attend [287 Or. 263] the mental health evaluation reflected a lack of reasonable professional skill and judgment. Further, we do not accept the state's argument that petitioner's argument is unpre-served. Rather, we agree with petitioner and conclude that the post-conviction court applied the wrong standard of prejudice when determining whether petitioner's right to adequate counsel under Article I, section 11, of the Oregon Constitution was violated. Accordingly, we also reverse and remand the post-conviction court's denial of petitioner's eighth claim of inadequate assistance of counsel related to his trial counsel's failure to attend the state mental health evaluation so that the court can apply the correct standard of prejudice on remand.[1]

         We now turn to the relevant facts. "A post-conviction court's findings of historical fact are binding * * * if there is evidence in the record to support them." Montez v. Czerniak. 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons. 355 Or. 598, 330 P.3d 595 (2014). "If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistent with the post-conviction court's conclusions of law." Id. We state the following facts, which are not disputed on appeal, in accordance with that standard.

         Petitioner was convicted by a jury of assault in the first degree, ORS 163.185, and attempted assault in the fourth degree, ORS 163.160; ORS 161.405. Both charges stemmed from an incident where petitioner stabbed two victims while riding with them in a cab. At no point at or prior to the trial did anyone dispute that petitioner committed those assaults or that they were unprovoked. The only issue was whether petitioner was so drunk at the time of the assaults that he could not form the requisite intent to commit them-i.e., voluntary intoxication.

         [287 Or. 264] In preparation for the voluntary intoxication defense, petitioner's initial trial attorney filed a notice under ORS 161.309(3) of intent to rely on a defense of guilty except for insanity due to mental disease or defect. Petitioner's first attorney also arranged for petitioner to be examined by Dr. Swiercinsky, a neuropsychologist. Swiercinsky reported that, in his opinion, petitioner may have suffered an alcohol-induced blackout at the time of the assaults-a condition which he may have been especially susceptible to because of potential brain damage caused by petitioner's chronic alcohol abuse, exposure to toxic fumes, and head injuries. Swiercinsky also suggested that petitioner have an MRI done to prove the existence of structural brain damage.

         After Swiercinsky examined petitioner, petitioner's first criminal defense attorney withdrew from representation and a second attorney was appointed. Petitioner's second attorney filed a new ORS 161.309(3) notice. Petitioner's second attorney then had Dr. Julien, an anesthesiologist who has extensively researched psychopharmacology and the effects of chemically induced amnesia, examine petitioner. Like Swiercinsky, Julien concluded that petitioner had likely suffered an alcohol-induced blackout at the time of the assaults and, therefore, that petitioner could not have formed the intent necessary to commit those assaults.

         In order to negate petitioner's voluntary intoxication defense, the state exercised its right under ORS 161.315 to have petitioner be evaluated by its own psychologist, Dr. Cochran. Although petitioner's trial counsel met with petitioner prior to that evaluation, petitioner's counsel was not present for Cochran's interview because he was given short notice that it was occurring and had a scheduling conflict. Before the state's evaluation, petitioner's counsel informed petitioner that Cochran was hired by the prosecutor and that, because of that fact, he should not allow Cochran to suggest answers or put words in petitioner's mouth.

         The case proceeded to trial where Cochran was called by the state and Julien was called by petitioner. At trial, Julien testified consistently with his above stated opinion. Cochran, on the other hand, testified that petitioner [287 Or. 265] relayed the events before the assaults to him in a way that was drastically inconsistent with petitioner's previous renditions of those events and petitioner's testimony at trial.

         As noted, after the trial, a jury convicted petitioner of assault in the first degree and attempted assault in the fourth degree. Petitioner initially appealed, but then voluntarily dismissed that appeal and filed the petition for post-conviction relief that is currently on appeal before us. In his petition, petitioner asserted 13 claims for relief. Those claims were that petitioner was denied adequate and effective assistance of trial counsel as guaranteed by Article I, section 11, as well as the Sixth and Fourteenth Amendments when

"(a) Counsel unnecessarily disclosed investigative reports during the plea-bargaining process.
"(b) Counsel withdrew an ORS 161.309 notice without following through on the recommendations of the neuro-psychologist Dr. Swiercinsky, who had examined Petitioner.
"(c) Counsel failed to consult fully with Dr. Swiercinsky about his findings and recommendations ...

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