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Aguilar v. State

Court of Appeals of Oregon

January 31, 2018

EVA CRYSTAL AGUILAR, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted May 25, 2017

         Washington County Circuit Court C136560CV Linda Louise Bergman, Senior Judge.

          Mark J. Geiger argued the cause and fled the brief for appellant.

          Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Petitioner appeals a judgment denying her petition for post-conviction relief. Following a criminal bench trial, petitioner was acquitted of aggravated theft but convicted of criminal mistreatment. In her petition for post-conviction relief, petitioner argued that she was entitled to relief due to inadequate assistance of counsel and denial of due process because the criminal trial court issued inconsistent verdicts and erroneously permitted a witness to assert his Fifth Amendment right against self-incrimination, and petitioner's trial counsel failed to object in either respect. Denying the petition, the post-conviction court concluded that the verdicts at the criminal trial were not inconsistent and petitioner had "withdrawn the issue" concerning the Fifth Amendment ruling. On appeal, petitioner argues that the post-conviction court erred when it failed to address her argument that the criminal trial court's purportedly inconsistent verdicts violated her due process rights and concluded that petitioner had withdrawn her argument arising from the Fifth Amendment ruling. Held: As to petitioner's first assignment, the post-conviction court did not err. The post-conviction court explicitly concluded that the verdicts were not inconsistent. Regardless, petitioner was barred from challenging the verdicts on appeal from the post-conviction court's judgment because she did not challenge the verdicts [290 Or. 49] in her criminal trial and did not raise any of the exceptions to the general rule that bars her from asserting unpreserved objections in post-conviction proceedings. As to petitioner's second assignment, the post-conviction court erred when it incorrectly concluded that petitioner had withdrawn her argument arising from the criminal trial court's ruling on the Fifth Amendment issue. The record reflects that petitioner raised and maintained that argument throughout the post-conviction proceedings.

         [290 Or. 50]

          SHORR, JUDGE.

         Petitioner appeals a judgment that denied her petition for post-conviction relief. For the reasons explained below, we reverse and remand.

         We first briefly describe the relevant facts of the underlying criminal trial before turning to a discussion of the post-conviction claims that are at issue in this appeal. Petitioner was charged with criminal mistreatment and aggravated theft in connection with a money transfer from her mother's bank account to the account of Miguel Aguilar, petitioner's husband. Petitioner claimed that her mother approved the transfer, which was for the purpose of purchasing a home that petitioner, her husband, and her mother would share. Petitioner's mother claimed never to have authorized the transfer.

         Petitioner was represented by counsel and proceeded with a bench trial after waiving her right to a jury. During the criminal trial, petitioner's husband was called as a witness. During his testimony, his lawyer interjected that husband was asserting his Fifth Amendment right against self-incrimination. The trial court permitted husband to assert his Fifth Amendment right and struck the testimony that he had already given. Petitioner's trial counsel did not object to the court's ruling.

         At the trial's conclusion, the court acquitted petitioner of aggravated theft. With respect to that charge, the court could not find that petitioner had the requisite intent to deprive her mother of money because her husband had, in fact, used the money to purchase a home in which petitioner and her mother had lived for a time. But the court convicted petitioner of criminal mistreatment after finding that she had unlawfully arranged for the transfer. The court found that that there was no evidence that petitioner's mother authorized the transfer. Petitioner did not appeal the judgment of conviction.

         Petitioner subsequently filed a petition for post-conviction relief. In her second amended petition, petitioner asserted that she was entitled to relief due to inadequate assistance of her counsel and denial of due process, citing [290 Or. 51] the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 10 and 11, of the Oregon Constitution. Of relevance to this appeal, petitioner argued to the post-conviction court that (1) the trial court issued inconsistent verdicts, which denied petitioner due process, and her trial counsel failed to object to those inconsistencies, which constituted inadequate assistance of counsel; and (2) the trial court erroneously permitted petitioner's husband to assert his Fifth Amendment right, thereby depriving petitioner of her right to question and confront him, and, again, her trial counsel's failure to object constituted inadequate assistance of counsel.

         Following a hearing, the post-conviction court ruled that (1) petitioner "never appealed" the purportedly inconsistent verdicts, and, in any event, the verdicts were not inconsistent; and (2) petitioner had "withdrawn" her arguments on the Fifth Amendment issue. The ...


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