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Myers v. Howton

Court of Appeals of Oregon

March 13, 2019

ALISHA DAWN MYERS, Petitioner-Appellant,
v.
Nancy HOWTON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

          Argued and submitted May 3, 2017.

          Washington County Circuit Court C092084CV; Linda Louise Bergman, Senior Judge.

          Jason Weber argued the cause and fled the briefs for appellant. Also on the briefs was O'Connor Weber LLC.

          Ryan 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.

          Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.

         Case 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.

         [296 Or.App. 501] EGAN, C. J.

         Petitioner 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).[1] 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.

         We 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.

         Petitioner 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 death penalty."

         At some 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."

         That 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."

         On 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 followed:

"[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 both points.
"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 fair statement?
"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 ...

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