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Monfore v. Persson

Court of Appeals of Oregon

March 20, 2019

VICTORIA MARIE MONFORE, Petitioner-Appellant,
v.
Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

          Argued and submitted January 4, 2018

          Washington County Circuit Court C135201CV, Linda Louise Bergman, Senior Judge.

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

          Rebecca M. Auten, 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 DeHoog, Judge. [*]

         Reversed and remanded as to denial of relief on (1) claim that trial counsel was inadequate for not investigating whether petitioner's conduct caused IP Koke to close (First Amended Petition, Paragraphs 9(D)(7)(b) and 9(D)(8) (d)) and (2) claim that trial counsel was inadequate for not objecting to imposition of restitution with respect to Counts 1 through 4 (First Amended Petition, Paragraph 9(D)(13)); otherwise affrmed.

         [296 Or. 626] Case Summary: Petitioner seeks post-conviction relief from her sentence and some of her theft convictions. Petitioner argues that she is entitled to relief on the ground that her trial counsel was inadequate and ineffective for not moving to dismiss some of the charges as time barred, for failing to conduct an investigation into the accuracy of the state's contention that petitioner's thefts caused the closure of a company, and for not objecting to the imposition of restitution with respect to the dismissed charges, Counts 1 through 4. The superintendent concedes error with respect to Counts 1 through 4.

         Held: The Court of Appeals rejected petitioner's challenges to her convictions, but concluded that, under Richardson v. Belleque, 362 Or. 236, 406 P.3d 1074 (2017), petitioner was entitled to a new sentencing hearing because her lawyer's decision not to investigate the state's claim that petitioner's theft caused one of the companies to fail did not comport with constitutional standards. Petitioner was also entitled to relief on her claims that trial counsel was inadequate and ineffective for not objecting to the imposition of restitution in connection with dismissed Counts 1 through 4.

         Reversed and remanded as to denial of relief on (1) claim that trial counsel was inadequate for not investigating whether petitioner's conduct caused IP Koke to close and (2) claim that trial counsel was inadequate for not objecting to imposition of restitution with respect to Counts 1 through 4; otherwise affrmed. [296 Or. 627]

          LAGESEN, P. J.

         While employed as a bookkeeper for two related Eugene companies, petitioner started writing company checks to herself, stealing over $1.5 million over the course of six years. One of the companies finally caught on and reported her to police, at which point petitioner quickly confessed and then pleaded guilty to 84 charges of various theft offenses. The trial court sentenced her to 23 years, nine months' incarceration, based in part on its view that petitioner's crime forced one of the companies to go out of business, leaving 85 people without jobs.

         Petitioner now seeks post-conviction relief from her sentence and some of her convictions. The primary issues before us are whether petitioner is entitled to relief from some of her convictions on the ground that her trial counsel was inadequate and ineffective for not moving to dismiss the charges as time barred, and whether she is entitled to relief from her sentence on the ground that her trial counsel was inadequate and ineffective for failing to conduct an investigation into the accuracy of the state's contention that petitioner's thefts caused the closure of a company. For the reasons that follow, we reject petitioner's challenge to her convictions, but conclude that, under Richardson v. Belleque, 362 Or. 236, 406 P.3d 1074 (2017), petitioner is entitled to a new sentencing hearing because her lawyer's decision not to investigate the state's claim that petitioner's theft caused one of the companies to fail did not comport with constitutional standards. We therefore reverse and remand with directions to the trial court to grant relief on petitioner's claim regarding the adequacy of trial counsel's sentencing investigation and order a new sentencing proceeding.

         I. BACKGROUND

         A. Underlying Criminal Proceedings

         Petitioner worked for 10 years in the accounts payable department of My Little Salesman. She also did the same type of work for a related company, IP Koke. Over six of those 10 years, from 2003 to 2009, she stole a total of $1, 563, 153.22 from the two companies. She did so by forging 365 checks to herself. Petitioner primarily took money [296 Or. 628] from IP Koke, until it closed and let go all of its employees in November 2008. Petitioner then stole from My Little Salesman until she was fired for incompetence in June 2009. She used the money to gamble and to travel to various casinos, making numerous trips to Las Vegas.

         After petitioner was fired, Pierce, one of the owners of both My Little Salesman and IP Koke, discovered the thefts and reported them to the police. Petitioner was arrested and, during a police interview, confessed to taking money from both IP Koke and My Little Salesman. The state then charged petitioner with 88 theft offenses, although it later dismissed the first four counts as barred by the statute of limitations. Petitioner pleaded guilty to the remaining 84 counts, with open sentencing.

         At sentencing, the state noted that petitioner's sentencing exposure was 80 to 90 years, but urged the court to sentence her to 285 months-23 years, nine months. The state argued that petitioner's conduct had caused IP Koke to close and its employees to lose their jobs, warranting a long sentence: "It's not a matter of how many checks she wrote. It's a matter of the number of victims that she amassed and the damage that she caused and that she knew she was causing." Pierce and several of the employees who had lost their jobs made statements blaming petitioner's thefts for the company's closure, and the hardships suffered by the former employees as a result.

         Petitioner's trial counsel, in response, opted not to dispute that the company's closure was the product of petitioner's thefts. Although counsel knew that that was the position that the state was going to take, and petitioner and her family members had requested that trial counsel investigate the claim that petitioner's conduct was the cause of IP Koke's closure, counsel decided not to look into it at all. Counsel thought that the best strategy was to "beg[] for mercy," without suggesting that the company failed for reasons other than petitioner's conduct, and said that he "had not signed up for that job of investigating whether IP went out of business because of mismanagement or petitioner's behavior, or both, and that was why [he] was so firm [296 Or. 629] in refusing to get involved in such a strategy." Consistent with that strategy choice, counsel argued at sentencing that petitioner's thefts were the product of her gambling addiction, that petitioner's prompt confession demonstrated that she had accepted responsibility as best she could, and that the harm that petitioner's addiction had caused to her own family all pointed toward lenient treatment. Counsel also provided the court with information regarding sentences imposed in other business embezzlement cases, all of which were shorter than the sentence advocated by the state. Some of those cases involved thefts of greater amounts of money than that taken by petitioner, and counsel urged the court to conclude that the state's proposed sentence was too long in comparison.

         The trial court went with the state's recommendation. In explaining its sentencing choice-and why it was imposing a longer sentence than those imposed in the other business embezzlement cases identified by trial counsel- the court ...


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