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Richardson v. Belleque

Supreme Court of Oregon

December 14, 2017

Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Petitioner on Review.

          Argued and submitted January 12, 2017

         On review from the Court of Appeals.[*] CC 09C20407; CA A151817

          Patrick M. Ebbett, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General and Frederick M. Boss, Deputy Attorney General.

          Jason Weber, O'Connor Weber LLC, Portland, argued the cause and fled the brief for respondent on review.

          Dennis N. Balske and Jeffrey Erwin Ellis, Portland, fled the brief for amicus curiae Oregon Criminal Defense Lawyers Association.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices. [**]

         [362 Or. 237] Case Summary:

         Petitioner, who was convicted of first-degree manslaughter and second-degree assault and sentenced as a dangerous offender, sought post-conviction relief, alleging that counsel provided inadequate assistance at sen­tencing. At the sentencing proceeding, the prosecutor presented a psychiatrist who testified that petitioner suffered from an antisocial personality disorder, in part based on petitioner's conduct as a juvenile. Petitioner's defense counsel knew beforehand that the expert would testify adversely to petitioner, but he did not obtain significant records pertaining to petitioner when he was a juvenile, con­sult with a psychological expert, or secure testimony from an expert to rebut that evidence. In the post-conviction proceeding, petitioner presented evidence from a psychologist who reviewed records from one of petitioner's juvenile incarcerations and interviewed petitioner, and who ultimately concluded that petitioner had not suffered from a conduct disorder when he was a youth, and therefore could not be diagnosed with an antisocial personality disorder as an adult. Held: Petitioner's counsel had failed to conduct an adequate investigation and, in light of the nature and complexity of the dangerous-offender sentencing proceeding and the infor­mation that counsel knew, counsel's decision not to consult an expert concerning the antisocial personality disorder diagnosis was not a reasonable exercise of professional skill and judgment. Had counsel adequately investigated petitioner's past and consulted a psychological expert, he would have obtained petitioner's juvenile mental health records and would have learned that the expert could pro­vide ammunition to oppose an enhanced dangerous-offender sentence, by rebut­ting the testimony of the psychiatrist and providing an explanation of petitioner's conduct that was not as damaging as an antisocial personality disorder.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [362 Or. 238] NAKAMOTO, J.

         In this action for post-conviction relief, petitioner successfully contended that his defense counsel had ren­dered constitutionally inadequate representation during a presentence hearing concerning whether petitioner was a dangerous offender who suffered from a "severe personal­ity disorder" as provided in ORS 161.725(1)(a). Petitioner's defense counsel cross-examined the psychiatrist who testi­fied for the state, but counsel had not investigated signifi­cant records regarding petitioner's background or consulted with an expert before the hearing, nor did he introduce evi­dence from a defense expert at the hearing. The jury found that petitioner suffered from a severe personality disorder, and the trial court sentenced petitioner to a lengthy prison term as a dangerous offender.

         The post-conviction court concluded that defense counsel had provided inadequate assistance by failing (1) to reasonably investigate and to consult with an expert before deciding that cross-examination alone was appropri­ate and (2) to present testimony from a defense expert to rebut the psychiatrist's testimony that petitioner had an antisocial personality disorder. After concluding that peti­tioner had been prejudiced as a result, it vacated petitioner's dangerous-offender sentence and remanded the case for resentencing. The Court of Appeals affirmed based on one of the post-conviction court's conclusions: that defense coun­sel had provided inadequate assistance through failure to investigate and consult an expert and that petitioner suf­fered prejudice as a result. Richardson v. Belleque, 277 Or.App. 615, 627-29, 373 P.3d 1113 (2016).

         On review, the state[1] argues that the Court of Appeals erred for two alternative reasons: (1) defense coun­sel made a reasonable tactical decision to rely on cross-examination without consulting an expert and (2) regard­less, petitioner did not establish the required prejudice, which the state describes as a showing that, but for the defi­cient representation, it was "reasonably probable" that the [362 Or. 239] outcome of the sentencing phase of trial "would have been different."

         As did the Court of Appeals, we conclude that defense counsel rendered inadequate assistance by failing to adequately investigate and to consult an expert in prepa­ration for the dangerous-offender hearing. We also conclude that defense counsel's deficiency had "a tendency to affect the result of the prosecution"-the possibility that it affected the result is more than merely theoretical. Accordingly, peti­tioner established prejudice and is entitled to post-conviction relief. We therefore affirm the judgment of the trial court and the decision of the Court of Appeals.

         I. FACTS

         For background, we begin by briefly describing the facts adduced during the guilt phase of petitioner's criminal prosecution. As the Court of Appeals described the incident that led to the convictions, in 2006, petitioner and his wife quarreled in a tavern, and then "petitioner walked out the back door to work on his truck. Petitioner later returned, exchanged words with his wife, and then left, slamming the door on his way out. This drew the attention of the victim, an elderly man, who followed petitioner out the door." 277 Or.App. at 618. Petitioner then "punched him, causing him to fall." Id. Thereafter, petitioner went back into the bar, told his wife to leave with him, and they walked out "the same door, walking by the victim as they departed. The victim suffered a massive head injury and died the next day." Id.

         Petitioner was charged with first-degree manslaugh­ter, a Class A felony, and second-degree assault. The state's theory of the case was that the attack was unprovoked. The defense theory was that petitioner had not acted knowingly (the assault charge) or recklessly (the manslaughter charge) and, instead, had hit the victim in self-defense.

         The defense relied on evidence that petitioner had witnessed numerous acts of domestic violence by his par­ents when he was a child, and later by other inmates while in prison, to argue that, when petitioner hit the victim, he reasonably feared that the victim intended to use a weapon against him. More particularly, petitioner testified that he [362 Or. 240] was quite close with his mother, had witnessed his father hit his mother on nearly a daily basis, and that one time he had hit his father when his father was hitting his mother. He also testified that he had had to fight in self-defense while in prison. In addition, petitioner's sisters provided testimony indicating that petitioner's early home life had been cha­otic. One sister testified that there was considerable abuse between their parents, primarily instigated by their mother, and that she left home as a teenager due to verbal abuse by their mother. Another sister testified that their parents were constantly physically fighting, and described their mother as "the violent one." She also testified that petitioner had been confined in the Skipworth juvenile facility multiple times because he "wouldn't go to school." She also indicated that he had been in juvenile facilities at St. Mary's Home for Boys and at MacLaren School for Boys.[2]

         A. The Dangerous-Offender Sentence

         A jury found petitioner guilty of both charges. The state then sought to have petitioner sentenced as a "dan­gerous offender" on the manslaughter charge under ORS 161.725 to 161.737.[3] The presentence hearing at which the jury would determine whether petitioner was a dangerous offender was critically important to petitioner.

         In part, ORS 161.725(1)(a) provides that a sentenc­ing court may impose an enhanced dangerous-offender sen­tence if a defendant is being sentenced for a Class A felony and suffers from "a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another." First-degree manslaughter generally requires imposition of a mandatory minimum prison sen­tence of 10 years and carries a maximum indeterminate prison sentence of 20 years. ORS 137.700(3)(a)(D); ORS 161.605(1); ORS 163.118(3). However, if the state proves that the defendant is a dangerous offender, upon proof of certain other facts, the determinate prison term for the [362 Or. 241] crime, a Class A felony, can be increased, and the associated maximum indeterminate prison term becomes 30 years.[4]

         The state prevailed at the dangerous-offender hear­ing. The resulting dangerous-offender sentence that peti­tioner received was considerably longer than the sentence he otherwise would have received. The sentencing court set the determinate portion of petitioner's dangerous-offender sentence at 260 months in prison (four months short of 22 years) and imposed an indeterminate prison term of 30 years.

         After he was sentenced, petitioner's direct appeal was unsuccessful. State v. Richardson, 226 Or.App. 85, 202 P.3d 290, rev den, 346 Or. 213 (2009).

         B. Petitioner's Dangerous-Offender Hearing

         The issue under our consideration in petitioner's action for post-conviction relief relates to the dangerous-offender hearing and defense counsel's preparation for it. We therefore describe that hearing in detail.

         By statute, a mental health professional will be appointed to evaluate a criminal defendant in a dangerous-offender case and will be involved in the process leading to the determination of dangerous-offender status. Under ORS 161.735(1), the trial court is required to order "an examina­tion by a psychiatrist or psychologist." The psychiatrist or psychologist must submit to the court "a written report of findings and conclusions, including an evaluation of whether the defendant is suffering from a severe personality disor­der indicating a propensity toward criminal activity." ORS [362 Or. 242] 161.735(3). A presentence dangerous-offender hearing is then held, and, unless the criminal defendant waives the right to a jury, a jury makes the determination whether the criminal defendant has a "severe personality disorder indicating a propensity toward crimes that seriously endan­ger the life or safety of another." ORS 161.725(1)(a); ORS 161.735(5), (6).

         Accordingly, the trial court ordered a psychiatrist, George Suckow, M.D., to evaluate petitioner before the dangerous-offender hearing. After examining petitioner, Suckow submitted a written report to the court and counsel for the parties. His report was adverse to petitioner.

         Suckow's report recounted that petitioner had a his­tory of physical abuse by his mother, and that he had been placed in the St. Mary's Home for Boys at the age of 12 after running away from home. The report further indicated that petitioner had a history of getting into fights during grade school, as well as at St. Mary's. It indicated that petitioner had issues with truancy from school, and he subsequently was placed at MacLaren, an Oregon youth correctional facil­ity, and then later in a federal youth correctional institution in California. Suckow's report also recounted that petitioner had an extensive criminal history, beginning when he was a juvenile and continuing into his adult life, and "a pervasive pattern of disregard for and violation of the rights of others" that was "present prior to and after the age of 15." Suckow diagnosed petitioner with amphetamine abuse as well as an antisocial personality disorder. Suckow ultimately opined that petitioner "does have a severe personality disorder indicating a propensity toward crimes that seriously endanger the life and safety of others."

         Suckow testified at the dangerous-offender hearing, and its primary focus was on Suckow's evidence. Suckow testified that his examination of petitioner involved a foren­sic interview that lasted approximately an hour, a review of petitioner's history and background including investigation reports of the current crime and petitioner's criminal record, and an assessment of petitioner's present mental status. He explained how diagnoses were made under the American Psychiatric Association's Diagnostic and Statistical Manual [362 Or. 243] of Mental Disorders (4th ed text rev 2000), hereafter referred to as DSM-IV-TR, and the various categories of disorders in that manual. He explained, referring to the DSM-IV-TR, that "[a] personality disorder is a pervasive pattern of behavior that starts in childhood and lasts for life. And it's not a psy­chosis, it's not a major mental illness; it's a way of behaving that that person has." He indicated that people with antiso­cial personality disorders are "normal except they seem to do things that are wrong and they have little regard for the rights of others." He described them as being prone to get­ting into fights and getting into trouble in school, and often having substance abuse problems. He opined that they tend to be deceitful and lacking in long-range goals. He noted, however, that they often do well in confinement due to the structure provided.

         Suckow explained that, in reaching a diagnosis of petitioner, he looked at petitioner's pattern of behavior over the years and compared that to what petitioner told him. He concluded that petitioner had been fairly open and honest with him and had acknowledged that he had had "a lot of trouble in school and with the law." Suckow further testi­fied that petitioner had said that, when he had been sent to St. Mary's at the age of 12, he "didn't like the discipline there and got into fights just like he had in grade school." He described petitioner's later juvenile history as involv­ing incarceration at MacLaren, followed by several years in a federal youth institution based on theft of a motorcycle. Petitioner also was incarcerated in an adult correctional facility in California, and he served time in a Washington state penitentiary for assault. In Oregon, petitioner pleaded guilty to numerous offenses over a number of years, and he had an attempted-murder charge reduced to second-degree assault. Suckow testified that petitioner acknowledged that he started to use amphetamines in the 1990s. Suckow opined that petitioner had had "a conduct disorder before the age of 15" and diagnosed petitioner with an antisocial personality disorder.

         Through cross-examination of Suckow, defense counsel's main focus was on whether there was sufficient evidence that petitioner suffered from a "severe personality [362 Or. 244] disorder," as required for a dangerous-offender sentence. In his cross-examination, defense counsel highlighted the requirements under the DSM-IV-TR for a diagnosis of anti­social personality disorder and introduced, without objec­tion, documents showing the criteria for diagnoses of antiso­cial personality disorder and conduct disorder found in the DSM-IV-TR. He noted that a criterion for diagnosis of an antisocial personality disorder was "evidence of a conduct disorder with onset before age 15 years."[5] Defense counsel then asked Suckow whether, if a person did not meet that criterion, the person could be diagnosed with an antisocial personality disorder. Suckow indicated general agreement with counsel's suggestion that that criterion must be met. Suckow then suggested that the age criterion was "not an absolute," because people do not simply change on the date they reach a specified age.

         Defense counsel questioned Suckow about how much (or how little) Suckow knew concerning petitioner before peti­tioner was 15 years old. Counsel zeroed in on the criteria for a "conduct disorder" as specified in the DMS IV-TR, which required that three criteria be satisfied in order to make a [362 Or. 245] diagnosis of the disorder.[6] One of the criteria for a conduct disorder is the initiation of physical fights. Counsel asked Suckow how that criterion could be satisfied, given that Suckow's report did not specify who had initiated the fights Suckow had mentioned in the report. Suckow responded: "Well, he told me he got into fights. Now, to me, that doesn't mean he was picked on; means he started them." Suckow acknowledged that his report included that petitioner had reported being bullied by other children later at MacLaren, [362 Or. 246] and also that the report did not specify that petitioner had initiated any of the fights in which he had been involved before that time. Counsel then pressed the point, asking if Suckow was merely "guessing," but Suckow responded: "No. I'm drawing a conclusion based upon his lifestyle and what he told me." Counsel then ran through a number of other criteria for a conduct disorder, which Suckow acknowledged had not been satisfied.

         Counsel then asked about the criterion, "run away from home overnight at least twice while living in paren­tal or parental-surrogate home" or "once without returning for a lengthy period." Counsel noted that Suckow's report mentioned only one incident of petitioner running away from home before age 12, but Suckow responded that "it sounded to me like he'd done it more than once." Counsel then noted that Suckow's report suggested that petitioner had skipped school after leaving St. Mary's at the age of 13 or 14, and he asked how that could satisfy the conduct disorder crite­rion of "often truant from school, beginning before age 13." (Emphasis added.) Suckow's response was that he believed the age cut-off to be an arbitrary figure and that he consid­ered that criterion satisfied.

         On redirect examination, the prosecutor shored up Suckow's testimony. The prosecutor referred back to the diagnosis of antisocial personality disorder and asked, "is it correct that it does not require a diagnosis of conduct disor­der; it just requires some evidence thereof?" Suckow replied: "Yes."

         In addition to Suckow's testimony, the jury received information on petitioner's criminal history, which included numerous property crimes and assaults dating back to the 1970s. (Much of petitioner's criminal history had already been revealed during the guilt phase of the trial, when petitioner testified in his own defense.) The prosecutor also presented evidence about a physical altercation between petitioner and several uniformed deputies that occurred during a recess at trial. Evidence was also presented from victims of some of petitioner's prior crimes, including evi­dence of knife attacks on multiple members of a family after petitioner was caught stealing tires, an incident in which [362 Or. 247] petitioner rammed his vehicle into two police cars while try­ing to elude their pursuit, and an occasion when petitioner attacked a deputy sheriff in a county jail.

         Although defense counsel cross-examined Suckow, he did not offer expert psychological testimony to rebut Suckow's testimony and diagnosis of petitioner. The only witness whom defense counsel called was petitioner's wife.

         In closing argument, the prosecutor emphasized that the determination of whether petitioner suffered from a personality disorder as described in the dangerous offender statute was a matter for the jury, not the expert, to decide. He noted petitioner's lengthy criminal history, and he pointed out that the gaps in that history were during periods of time when petitioner was imprisoned.

         Defense counsel's closing argument focused on Suckow's testimony and the prosecution's burden of proof. Defense counsel pointed out that Suckow had acknowledged that he accepted the DSM-IV-TR criteria for conduct disor­der, but that (1) Suckow lacked any basis for concluding that petitioner had initiated the fights he had been in, (2) Suckow had not documented more than one instance of petitioner running away from home, and (3) Suckow's report revealed instances of truancy only after petitioner had left St. Mary's at the age of 13 or 14. Defense counsel argued that on mat­ters when Suckow "had to draw certain conclusions, he was saying he did not have the facts to support him. But he then kind of said he was assuming, as an adult, it's probable, maybe, it was there as a child-recall that? 'Probable' is not beyond a reasonable doubt." Defense counsel also noted that the jury was not bound by Suckow's opinion, and he urged the jury to use the criteria from the DSM-IV-TR to conclude that the criteria for a conduct disorder had not been met and that, therefore, "[t]he antisocial behavior, then is not there either."

         After closing arguments, the trial court instructed the jury to make findings as to whether petitioner was "suf­fering from a severe personality disorder indicating a pro­pensity toward crimes that seriously endanger the life or safety of another and that, because of the dangerousness [362 Or. 248] of [petitioner], an extended period of confined correctional treatment or custody is required for the protection of the public." ORS 161.725(1). The court also included an instruc­tion that the jury was not required to accept the opinions of experts. The jury unanimously found that petitioner suf­fered from a severe personality disorder indicating a pro­pensity toward crimes that seriously endanger the life or safety of another.

         C. The Post-Conviction Proceeding

         Petitioner initiated the present proceeding, alleging that his defense counsel in the underlying criminal proceed­ing had provided inadequate assistance of counsel, in viola­tion of Article I, section 11, of the Oregon Constitution. As pertinent here, petitioner alleged:

"Defense counsel failed to conduct an investigation to sup­port his decision not to obtain a defense psychological evalu­ation of petitioner to rebut testimony by prosecution expert, Dr. George Suckow, that petitioner suffered from an anti­social personality disorder. A defense psychologist would have provided testimony that petitioner does not meet the diagnostic criteria for an antisocial personality disorder and that petitioner did not suffer from a severe personality disorder. As a result of counsel's failure to retain a defense psychologist the jury relied exclusively upon the testimony of Dr. Suckow to determine that petitioner did suffer from a severe personality disorder. Petitioner was thereafter sentenced as a dangerous offender under ORS 161.725. An attorney exercising reasonable professional skill and judg­ment would have retained a psychologist for the reasons outlined above."

         In support of that claim, petitioner introduced a writ­ten report from a clinical psychologist, Dr. Norvin Cooley. In his written report, Cooley indicated that he had been hired to evaluate petitioner and examine records to determine if "there were factors that should have been considered by the [jury] which were not provided in [petitioner's] defense that could have influenced the [jury's] opinion as to whether or not [petitioner] was a dangerous offender." His record review covered (1) the presentencing investigation that had been done before petitioner's dangerous offender hearing; (2) peti­tioner's records at St. Mary's Home for Boys; (3) Suckow's [362 Or. 249] report and testimony; and (4) the prosecutor's and defense counsel's opening and closing arguments at the dangerous offender hearing. Cooley further noted that he and other psy­chologists in Oregon would have been available as defense experts at the time of petitioner's dangerous-offender hear­ing and would have obtained and reviewed critical historical background records concerning petitioner.

         With respect to the presentencing investigation report, Cooley observed that it included 14 felony convictions, 21 misdemeanors, and a juvenile adjudication "for interstate transportation of a stolen vehicle [when petitioner] was 15 years old." Cooley further noted that the report indicated that petitioner had been in the Skipworth juvenile facility for ...

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