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Owen v. Taylor

Court of Appeals of Oregon

September 7, 2017

ROBERT HOUSTON OWEN, Petitioner-Appellant,
v.
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

          Argued and submitted March 31, 2016.

         Umatilla County Circuit Court CV140346; Jack A. Billings, Senior Judge.

          Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Petitioner sought post-conviction relief from his convictions stemming from 40 charges in five different cases, to which he entered into a global plea agreement to resolve all charges against him. He contended that the lawyer who assisted him in the global resolution of the charges against him rendered inadequate and ineffective assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by not fling motions to suppress evidence in some of the five cases against him. The post-conviction court rejected that claim, concluding that, under the circumstances facing petitioner at the time he entered his plea, his trial counsel was not inadequate or ineffective for not fling the motions to suppress that petitioner now contends should have been fled. Held: Under the particular circumstances of this case, petitioner's counsel was neither constitutionally inadequate nor ineffective in failing to move to suppress evidence because it was not unreasonable for counsel to think that the motions [287 Or. 640] would not succeed or advance petitioner's objectives in advance of plea negotiations, and that such motions would carry significant risks for petitioner.

         [287 Or. 641]

          LAGESEN, J.

         After becoming addicted to painkillers that were prescribed for an injury, petitioner went on a five month long crime spree consisting mostly of drug and property offenses. Although petitioner was apprehended and charged with the offenses he committed as the spree unfolded-leading to five different criminal cases against him-because the county jail did not have space available to hold him, he was not jailed pending resolution of those charges. His crimes continued until an incident that put the lives of three bicyclists at risk: Petitioner stole an Audi from a car lot and abandoned it in a field after it caught fire during a high-speed car chase that petitioner led through residential streets in Springfield. At that point-facing 40 charges in five different cases with the prospect of additional charges in at least one of the cases-petitioner, with the assistance of counsel, entered into a global resolution to settle the cases against him. He agreed to plead guilty to all 40 charges, in exchange for the state's agreement to cap its sentencing recommendation at 200 months' incarceration, to not file for aggravating factors in one of the cases, and its stipulation that petitioner would be eligible for alternative incarceration programs and earned time credits. The trial court accepted petitioner's plea and ultimately sentenced petitioner to 151 months' incarceration, rejecting both the state's recommendation (181 months) and petitioner's recommendation (60 months).

         Petitioner sought post-conviction relief from those convictions and sentence. See ORS 138.510 - 138.680. He contended that the lawyer who assisted him in the global resolution of the charges against him rendered inadequate and ineffective assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by not filing motions to suppress evidence in some of the five cases against him. The post-conviction court rejected that claim, concluding that, under the circumstances facing petitioner at the time he entered his plea, his trial counsel was not inadequate or ineffective for not filing the motions to suppress that petitioner now contends should have been filed. Because we agree with that conclusion, we affirm.

         [287 Or. 642] FACTUAL AND PROCEDURAL BACKGROUND

         As noted, by the time he entered his plea, there were 40 charges pending against petitioner in Lane County. He accrued those charges as follows.

         On December 1, 2011, petitioner was stopped for a traffic infraction. That stop led to a warrantless consent and then inventory search of petitioner's car. Those searches revealed heroin, methamphetamine, more than $300 cash, and six laptop computers, at least three of which were later confirmed to be stolen. Petitioner admitted that he was dealing heroin. This led to charges for two counts of first-degree theft, second-degree theft, unlawful delivery of heroin, unlawful possession of heroin, and unlawful possession of methamphetamine. Police continued to look into the ownership of the other three laptops, contemplating additional charges if they determined ownership.

         Six days later, on December 7, 2011, petitioner was stopped for driving a vehicle with expired tags. After observing drug paraphernalia in the car, officers conducted a warrantless patdown and then consent search of petitioner, which revealed heroin, more than $300 in cash, and a scale. Petitioner consented to a warrantless search of his backpack, which revealed stolen property. Then, warrantless and consented-to inventory searches were conducted of petitioner's vehicle. Those further searches revealed more stolen property, including iPods, telephones, jewelry, and credit cards. This led to charges for two counts of first-degree theft and one count of unlawful possession of methamphetamine. Officers initially were unable to determine ownership of the property that petitioner possessed at the time of the stop, and continued to investigate, contemplating additional charges if ownership could be determined.

         Two days later, on December 9, 2011, police officers contacted petitioner, who they located on the street, to follow up on a report that he had delivered heroin upon his release from custody on December 7. At the time, petitioner was pushing a high-end stolen bicycle and carrying a stolen computer bag. Petitioner consented to a warrantless search of the bag, which revealed a stolen laptop, heroin, bolt cutters, [287 Or. 643] and a stolen knife. Officers then found more stolen bicycles at petitioner's girlfriend's apartment, and other items they believed to be stolen. Petitioner admitted to police that he was dealing heroin. This led to charges for unlawful delivery of heroin, four counts of first-degree theft, and one count of second-degree theft. Because officers had been able to identify the owners of a small portion of property only, they continued to attempt to identify the owners of the property believed to be stolen, contemplating additional charges if ownership could be established.

         By January 18, 2012, officers had developed probable cause to arrest petitioner for additional thefts related to the property that they had found in petitioner's possession in the December searches through their investigations into the ownership of that property. After observing petitioner driving on a suspended license, officers stopped him for that offense and then arrested him based on their probable cause that he had committed additional thefts in December. Officers then conducted a warrantless inventory search of his car. They found heroin, methamphetamine, multiple scales, drug paraphernalia, bolt cutters, and a large amount of property that appeared to be stolen. That property included wallets, gift cards, Oregon Trail cards in names not belonging to petitioner, watches, jewelry, bicycle parts, and a gaming system, among other things. Police also obtained and executed a warrant on petitioner's cell phone and discovered many messages about drug dealing and stolen property. Petitioner initially was charged with one count of unlawful possession of heroin. Officers launched an investigation to identify the owners of the various items that petitioner possessed, contemplating additional charges if they determined ownership.

         Shortly thereafter, in early February 2012, officers received reports of the unauthorized use of a credit card belonging to the grandmother of petitioner's ex-girlfriend. The credit card was used 18 different times. Suspecting petitioner, officers were able to obtain video of 13 of the transactions. The video confirmed that petitioner was the person using the credit card. Although five of the unauthorized transactions were not captured on video, other [287 Or. 644] evidence (including the 13 transactions captured on video) tended to implicate petitioner. Based on that conduct, the state charged petitioner with four counts of identity theft for the unauthorized use of the credit card. The state, however, did not rule out charging petitioner with 18 counts of identity theft based on each separate transaction. Had the state charged the case in that manner, and had petitioner been convicted on each count, his sentencing exposure would have been 540 months under ORS 137.717, which governs sentencing for repeat property offenders.

         About a month later, on March 9, 2012, petitioner was arrested on outstanding warrants. A packet of heroin was sticking out of petitioner's pocket, and petitioner admitted that he was carrying an illegally possessed knife. Petitioner also possessed stolen Visa gift cards, several other gift cards that appeared to be stolen, a check that appeared to be stolen, and drug paraphernalia. This conduct led to charges for ...


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