and submitted May 3, 2017.
Washington County Circuit Court C092084CV; Linda Louise
Bergman, Senior Judge.
Weber argued the cause and fled the briefs for appellant.
Also on the briefs was O'Connor Weber LLC.
Kahn, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Frederick M. Boss, Deputy
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman,
Summary: Petitioner appeals from an amended judgment denying
post-conviction relief. Petitioner assigns error to the
post-conviction court's determination that she validly
waived her constitutional right to a jury trial in the
criminal proceeding thus concluding that her conviction
remained valid under the Post-Conviction Hearing Act. ORS
138.530(1)(a). Petitioner argues that a waiver of a
constitutional right in exchange solely for immunity from the
death penalty is an involuntary waiver. Furthermore,
petitioner argues that the facts do not support a finding
that her waiver was voluntary. Held: A waiver of the
right to a jury trial is not inherently invalid even when the
waiver is encouraged by removing a possible death penalty
sentence. In light of the post-conviction court's factual
findings, petitioner's waiver of her right to a jury
trial was voluntary, and consequently, valid.
Or.App. 501] EGAN, C. J.
appeals from an amended judgment denying post-conviction
relief. In 2003, when she was 18 years old, petitioner was
charged with eight felony counts in connection with the death
of a single victim. After a bench trial and sentencing
proceeding, petitioner was convicted on all counts and
sentenced to life in prison without the possibility of
parole. Petitioner appeals from the post-conviction
court's denial of her petition for post-conviction
relief. Her chief contention on appeal is that she did not
validly waive her constitutional right to a jury trial in the
criminal proceeding; petitioner concludes that her conviction
is thus void under the Post-Conviction Hearing Act,
specifically, ORS 138.530 (1)(a). In light of the
post-conviction court's factual findings, we conclude
that petitioner's waiver of her right to a jury trial was
voluntary and, consequently, valid. Accordingly, we affirm.
We reject without discussion petitioner's second and
third assignments of error.
review a post-conviction court's denial of relief for
legal error. Sullivan v. Popoff, 274 Or.App. 222,
230, 360 P.3d 625 (2015), rev den, 358 Or. 833
(2016). We "are bound by the post-conviction court's
findings of historical fact if those findings are supported
by the evidence in the record." Id. "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 consistently with the post-conviction
court's conclusions of law." Green v.
Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). Thus, we
begin by laying out the relevant facts consistent with the
post-conviction court's findings.
was charged with four counts of aggravated murder, ORS
163.095, and one count each of felony murder, ORS 163.115,
robbery in the first degree, ORS [296 Or.App. 502] 164.415,
burglary in the first degree, ORS 164.225, and unauthorized
use of a vehicle, ORS 164.135. All the charges involved a
single victim. After being charged, petitioner engaged in
plea negotiations with the state. During those negotiations,
petitioner spoke with the judge presiding over her pretrial
hearings. He told her that "[i]f [she] did not take a
plea bargain that he could almost guarantee that it would be
bad and that [she] would probably, more than likely get the
point after that discussion with the judge, petitioner
accepted the state's offer to refrain from seeking the
death penalty in exchange for petitioner's agreement to
waive her jury right in both the guilt and penalty phases of
her trial. On January 30, 2004, petitioner, in front of her
attorney, executed a written jury waiver that stated:
"I, the Defendant in the above entitled criminal
proceeding, having been heretofore fully informed of all my
several constitutional rights, including my right to a Jury
Trial, and being well aware of my right thereto, do hereby
knowingly waive (give up) my right to a Jury Trial and I do
so freely and voluntarily without any threat, promise, or
other form of coercion."
waiver was submitted to the court along with a letter from
Dr. Larsen, a psychiatrist who had evaluated petitioner.
Larsen wrote that, in his "medical psychiatric opinion
[, petitioner] meets the minimum standard to aid and assist
in her own defense and understands the nature of the charges
and potential penalties levied against her."
March 22, 2004, at the beginning of petitioner's trial,
petitioner engaged in a colloquy with the trial judge, a
different judge from the one who presided over the pretrial
hearings. The trial judge noted that a waiver of jury trial
had been filed and asked petitioner's attorney, whether
that was still petitioner's decision. This colloquy
"[DEFENSE COUNSEL]: Yes, Your Honor. We would ask that
the Court inquire, make the appropriate inquiries of
[defendant] and it is our desire that the entire trial be
tried before the court sitting without a jury.
"I have explained to [defendant] that she's
constitutionally and statutorily entitled to a jury. I have
advanced the [296 Or.App. 503] opinion to her as her lawyer
that it is in her best interest that we be trying it without
a jury and she has agreed but I would appreciate inquiry into
"THE COURT: Okay.
"[Defendant], I know there was-from discussions with the
attorneys there was significant opportunity for [defense
counsel] to talk to you before you signed this document back
in January and I assume-and you've had opportunities
since then to talk to [defense counsel] further, is that a
"THE DEFENDANT: Yes.
"THE COURT: Okay. And I'm sure [defense counsel]
explained and I would again state, you do have an absolute
right to a jury trial if that is your decision and that's
on all aspects of this matter. And because of the charges
that would be a jury which would first hear evidence and make
a determination as to whether you were not guilty or guilty
of the Aggravated Murder charges and then the other charges
and then, if, in fact, they found you guilty on the
Aggravated Murder the jury would be making a decision as to
what penalty would be imposed.
"And in this matter the [state's attorneys] had
indicated that they would not be seeking on the Aggravated
Murder a death penalty sentence if, in fact, you were waiving
a jury. And so that was part of the agreement that the death
penalty is not going to be an issue.
"So do you understand all of that?
"THE DEFENDANT: Yes.
"THE COURT: And is it, after consultation with [defense
counsel], is it still your decision to proceed on this matter
without a jury where I would be making the decisions as to
whether or not beyond a reasonable doubt you committed any of
these crimes and then if, in fact, you did commit the crimes
and one of the decisions was you committed the aggravated
murders, then I would be making a decision as to what
sentence would be imposed. And the two sentences in that
regard would be a life sentence ...