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Sanders v. Brown

Court of Appeals of Oregon

October 16, 2019

OMTEME MONI BLAYWAS SANDERS, Petitioner-Appellant,
v.
Steve BROWN, Superintendent, Warner Creek Correctional Facility, Defendant-Respondent.

          Argued and submitted October 30, 2018

          Lake County Circuit Court 150107C V; Robert F. Nichols, Jr., Judge.

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

          Ryan 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.

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

         Case Summary:

         Petitioner 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 prejudiced.

         [300 Or.App. 85] LAGESEN, P. J.

         Petitioner 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.

         Petitioner 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 constitution.

         On 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.

         Petitioner pleaded guilty to two counts of assault in the second degree—one count for each incident—in 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 ...

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