and submitted October 30, 2018
County Circuit Court 150107C V; Robert F. Nichols, Jr.,
Weber argued the cause for appellant. Also on the brief was
O'Connor Weber LLC.
Kahn, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Rebecca M.
Auten, Assistant Attorney General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
seeks post-conviction relief. He assigns error to the
post-conviction court's conclusion, as a matter of law,
that petitioner's counsel was not ineffective for failing
to inform petitioner of how time served would be calculated,
because that level of specificity is never required by the
state or federal constitutions. The post-conviction court did
not make factual findings as to whether petitioner's
counsel misrepresented how credit for time served would be
calculated or determine whether petitioner was prejudiced.
Held: Under the Oregon Constitution, counsel must
inform a client of those circumstances that counsel knows to
be material to their client's decision whether to plead
guilty and waive jury trial rights. Long v. State of
Oregon, 130 Or.App. 198, 202, 880 P.2d 509 (1994). The
Court of Appeals reversed and remanded for the
post-conviction court to determine whether petitioner's
counsel misinformed him and, if so, whether he was
Or.App. 85] LAGESEN, P. J.
pleaded guilty to two counts of assault in the second degree
pursuant to a plea agreement; the two counts arose from two
separate incidents. Petitioner claims that the agreement was
for petitioner to receive equal credit for time served on
both of his offenses, despite having served differing amounts
of time for each offense. Ultimately, it was determined that
petitioner could not lawfully be credited with equal time
served, because the offenses were not related. That resulted
in petitioner receiving time served credit for 100 days fewer
than he anticipated.
now seeks post-conviction relief. The primary issue before us
is whether the post-conviction court erred in denying
petitioner relief based on its conclusion, as a matter of
law, that petitioner's counsel was not ineffective for
failing to inform petitioner of how time served would be
calculated, because that level of specificity is never
required by the state or federal constitutions. We conclude
that the post-conviction court erred. In order to be adequate
under the Oregon Constitution, a lawyer must accurately
apprise a client of consequences counsel knows to be material
to the client's decision whether to accept a plea offer.
We therefore reverse and remand for the post-conviction court
to make findings as to whether petitioner's counsel
misinformed him about the issue of credit for time served
and, if so, whether he was prejudiced. Because we must
reverse and remand under the Oregon Constitution, we do not
reach petitioner's arguments under the federal
September 9, 2011, petitioner was charged with assault in the
second degree and five other offenses. All of the offenses
were against his wife and arose out of one incident. The case
was dismissed on February 22, 2013. Less than one month
later, on March 14, 2013, petitioner was charged again for
the same incident. Eleven days later, he was charged, based
on a second incident with his wife, with assault in the
second degree and three other offenses.
pleaded guilty to two counts of assault in the second
degreeâone count for each incidentâin exchange for the
state's agreement to drop the other charges. The
agreement provided that petitioner would be sentenced to 70
[300 Or.App. 86] months on each count, with sentences to run
concurrently. The parties then discussed with the court the
credit that petitioner would receive for time served:
"[DEFENSE COUNSEL]: He's also eligible to get credit
for time served on that other case that's mentioned
there, Your Honor.
"[THE STATE]: Your Honor, what happened was this was
charged in 2011 and then it was dismissed and refiled. So, he
served time under that ...