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Thompson v. Cain

Court of Appeals of Oregon

December 12, 2018

WILLIAM THOMPSON, Petitioner-Appellant,
v.
Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and submitted August 28, 2018

          Malheur County Circuit Court 15CV1522 J. Burdette Pratt, Senior Judge.

          Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief. The state convicted petitioner of multiple crimes. Following his conviction, petitioner pursued post-conviction relief on a single claim of ineffective assistance of counsel stemming from trial counsel's concession that some of the sexual acts alleged between petitioner and the two minor victims did occur, but were consensual. The post-conviction court denied petitioner relief, explaining that, under Pinnell v. Palmateer, 200 Or.App. 303, 114 P.3d 515 (2005), rev den, 340 Or. 483 (2006), "[t]he strategy [to concede that sexual contact between petitioner and victims did occur] did not amount to a guilty plea and did not require Petitioner's consent as long as he was informed of the strategy."

         Held:

         In light of McCoy v. Louisiana, US, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018), it is apparent that our decision in Pinnell, while accurate, was incomplete. McCoy requires the post-conviction court to make a factual inquiry into whether the maintenance of innocence was petitioner's expressed fundamental objective for trial. If it was, then a concession of guilt by counsel to contravene that expressed fundamental [295 Or.App. 434] objective violates the Sixth Amendment. Because the necessary factual inquiry is absent, it is inappropriate to affirm the post-conviction court's judgment on this record. We vacate the judgment and remand to the post-conviction court for fact finding in accordance with this opinion.

         Vacated and remanded.

         [295 Or.App. 435] JAMES, J.

         In this case we are asked to determine whether criminal defense counsel renders constitutionally ineffective assistance under the Sixth Amendment to the United States Constitution when counsel decides to concede a defendant's guilt as to some charges in closing argument after discussing that strategy with the defendant-but in that discussion defendant neither affirmatively acquiesces nor rejects the proposed strategy, but, rather, simply maintains his innocence. We conclude that resolution of that question requires a factual inquiry into what was the defendant's fundamental objective for the representation, as expressed to defense counsel. When the defendant's fundamental objective is to maintain innocence regardless of the potential outcome, counsel may not concede guilt without the affirmative consent of the defendant. However, where the defendant is guided by a different fundamental objective, for example minimizing sentence exposure, an attorney's decision to concede guilt without express consent may not be constitutionally ineffective assistance of counsel. Because that necessary factual inquiry is missing from this case, we reverse and remand to the post-conviction court for fact-finding in accordance with this opinion.

         "We are bound by a post-conviction court's findings of fact if they are supported by evidence in the record, and we review its legal conclusions for errors of law." Ayer v. Coursey, 253 Or.App. 726, 728, 292 P.3d 595 (2012). "If the post-conviction court did not expressly make factual findings, and 'there is evidence from which the 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.'" Id. at 728 (quoting Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968)). We state the facts in accord with these standards.

         In 2011, petitioner was charged with 28 criminal counts that spanned a variety of sexual crimes committed against his daughter and her friend when they were minors. The state's theory was that petitioner sexually abused his daughter from the time she was 12 until she was 21, and that petitioner sexually abused his daughter's friend over a [295 Or.App. 436] period of about one year. Eleven of the counts alleged the use of forcible compulsion. One count alleged that the victim was physically helpless.

         Petitioner entered not guilty pleas for all counts and proceeded to trial. Based on the evidence as it developed, petitioner's counsel did not believe there was any chance that the jury would find the sexual encounters did not happen. She did believe, however, that there were plausible arguments that could be made that the sexual encounters did not include forcible compulsion and that the daughter's friend was not physically helpless in respect to one of the counts. Prior to closing arguments, counsel discussed her strategy of acknowledging guilt as to some counts with petitioner. As counsel testified in the post-conviction proceeding:

"Before closing argument, I discussed the chosen strategy with petitioner along with the reasons I believed it was the best option available. Petitioner did not object to me pursuing that strategy, although he ...

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