Dorn-Privett v. Brown

No. 685            December 28, 2023                 783

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

          ERIN ELIZABETH DORN-PRIVETT,
                  Petitioner-Appellant,
                            v.
                    Nichole BROWN,
                    Superintendent,
          Coffee Creek Correctional Institution,
                 Defendant-Respondent.
           Washington County Circuit Court
                  19CV41932; A176150

  Patricia A. Sullivan, Senior Judge.
  Submitted March 28, 2023.
   Margaret Huntington and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert A. Koch, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
784                                    Dorn-Privett v. Brown

        HELLMAN, J.
         Petitioner appeals from a judgment that denied her
petition for post-conviction relief. In her sole assignment
of error, petitioner contends that the post-conviction court
erred when it concluded that her trial counsel did not pro-
vide inadequate and ineffective assistance of counsel after
counsel failed to argue for merger of petitioner’s convictions
under ORS 161.067(1). For the reasons below, we affirm.
         Petitioner’s convictions were based on an incident
in which she drove her car at her neighbors during a dis-
pute. For that conduct, a jury found petitioner guilty of three
counts of attempted first-degree assault, ORS 163.185, three
counts of unlawful use of a weapon, ORS 166.220, three
counts of menacing, ORS 163.190, three counts of recklessly
endangering another person, ORS 163.195, and second-
degree disorderly conduct, ORS 166.025. At sentencing, the
trial court merged the guilty verdicts for unlawful use of a
weapon with the verdicts for first-degree attempted assault.
Petitioner’s counsel further argued that the menacing and
reckless endangering verdicts should also merge with the
first-degree attempted assault verdict; however, that argu-
ment was not explicitly based on ORS 161.067(1). The trial
court rejected petitioner’s argument regarding merger of
those verdicts.
         In her post-conviction case, petitioner argued that
trial counsel failed to exercise reasonable professional skill
and judgment because counsel did not raise ORS 161.067(1)
as the legal basis for the trial court to merge the verdicts
for menacing, ORS 163.190, and recklessly endangering
another person, ORS 163.195, with the verdict for attempted
first-degree assault, ORS 161.405 and ORS 163.185. The
post-conviction court denied relief because it determined
that petitioner did not prove “that an argument for merger
under ORS 161.067(1) would have been successful had Trial
Counsel argued it at sentencing.”
         We review the post-conviction court’s denial of relief
for legal error and are bound by the court’s “findings of his-
torical fact * * * if there is evidence in the record to support
them.” Green v. Franke, 

, 

 (2015).
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 (2023)                            785

A petitioner is entitled to post-conviction relief under ORS
138.530 when “there has been a ‘substantial denial’ of a peti-
tioner’s ‘rights under the Constitution of the United States,
or under the Constitution of the State of Oregon, or both,
and which denial rendered the conviction void.’ ” Green, 

 (quoting ORS 138.530(1)(a)). Although we interpret
and apply Article I, section 11, of the Oregon Constitution
independently of the Sixth Amendment to the United States
Constitution, “the standards for determining the adequacy
of legal counsel under the state constitution are function-
ally equivalent to those for determining the effectiveness of
counsel under the federal constitution.” Montez v. Czerniak,

, 

, adh’d to as modified on recons,

, 

 (2014).
         To be entitled to post-conviction relief based on a
claim of inadequate assistance of counsel, a petitioner must
prove that trial counsel failed to exercise reasonable profes-
sional skill and judgment and that the petitioner suffered
prejudice from counsel’s inadequacy. 

 (Article I, section
11); Strickland v. Washington, 

, 

, 

 (1984) (Sixth Amendment).
         Although there is no case law holding that the
crimes of menacing and recklessly endangering another
person merge with attempted first-degree assault under
ORS 161.067, the law does not require a petitioner to cite
a directly controlling case to establish the inadequacy of
counsel. Indeed, in Burdge v. Palmateer, 

,

 (2005), the Supreme Court recognized that “[i]n
at least some cases, a lawyer’s failure to present an unset-
tled question may be inadequate assistance of counsel.” As
explained in Burdge, “[e]ven if the meaning of a statute
remains unsettled, the statute may so obviously offer pos-
sible benefits to a defendant that any lawyer exercising rea-
sonable professional skill and judgment would raise it.” 

.
         This is not one of those cases. As we explain below,
petitioner’s guilty verdicts do not merge; accordingly, trial
counsel did not fail to exercise reasonable professional skill
and judgment when she did not argue for merger under ORS
161.067(1). Raising an argument that is ultimately legally
786                                   Dorn-Privett v. Brown

incorrect would not have “obviously” provided any benefit to
petitioner, even if the law was unsettled at the time.
        Under ORS 161.067(1), referred to as the “anti-
merger” statute, “[w]hen the same conduct or criminal epi-
sode violates two or more statutory provisions and each
provision requires proof of an element that the others do
not, there are as many separately punishable offenses as
there are separate statutory violations.” See State v. Barton,

, 

 (2020) (explaining that
the court “look[s] to the anti-merger statute, ORS 161.067”
to determine “whether multiple violations of the law must
merge”). Petitioner argues that the elements of menacing
and recklessly endangering another person are subsumed
into the elements of attempted first-degree assault and,
therefore, that they necessarily merge under ORS 161.067(1).
         Beginning with attempted first-degree assault,
“[a] person is guilty of an attempt to commit a crime when
the person intentionally engages in conduct which consti-
tutes a substantial step toward commission of the crime.”
ORS 161.405(1). Petitioner’s attempt convictions were
charged under ORS 163.185(1)(a), first-degree assault,
which requires that a person “[i]ntentionally cause[ ] serious
physical injury to another by means of a deadly or danger-
ous weapon[.]” Accordingly, attempted first-degree assault
requires that a defendant intentionally engage in conduct
that constitutes a substantial step toward causing serious
physical injury to another by means of a deadly or danger-
ous weapon. State v. O’Hara, 

, 

, rev den, 

 (1998).
         Turning to menacing, a person violates ORS 163.190
“if by word or conduct the person intentionally attempts to
place another person in fear of imminent serious physical
injury.” On the one hand, while menacing requires proof of
the defendant’s intent to put the victim “in fear of imminent
serious physical injury,” attempted first-degree assault has
no such requirement. Compare ORS 163.190(1) with ORS
163.185(1)(a). In fact, it may be possible to commit attempted
first-degree assault without the victim ever perceiving the
danger, let alone fearing imminent physical injury. Cf. State
v. Rice, 

, 

 (2020) (applying
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 (2023)                             787

ORS 161.067(1) and explaining that the crime of menacing
includes the element of placing the victim in fear of immi-
nent serious physical injury while the offense of pointing a
firearm at another “can be committed without the victim
even knowing that the gun was pointed or aimed in the vic-
tim’s direction”).
        On the other hand, while attempted first-degree
assault requires that a defendant take a substantial step
toward causing serious physical injury to another, menac-
ing does not. Compare ORS 163.185 and ORS 161.405(1),
with ORS 163.190(1). In fact, menacing can occur through
a defendant’s mere use of words—without any conduct that
constitutes a step toward causing serious physical injury.
See ORS 163.190(1) (providing that menacing may occur “by
word or conduct”).
          Because menacing and attempted first-degree
assault each require proof of an element that the other does
not, they do not merge. There was thus no obvious benefit
to petitioner from raising the argument and counsel did not
fail to “exercise reasonable professional skill and judgment”
when she did not argue for merger under ORS 161.067(1).
         Turning to recklessly endangering another person,
ORS 163.195(1), that crime requires proof that “the person
recklessly engages in conduct which creates a substantial risk
of serious physical injury to another person.” As described
above, attempted first-degree assault requires that the
defendant intentionally engage in conduct that constitutes
a substantial step toward causing serious physical injury
to another by means of a deadly or dangerous weapon. ORS
163.185; ORS 161.405(1). To constitute a “substantial step”
toward commission of a crime, “the defendant’s conduct must
(1) advance the criminal purpose charged and (2) provide
some verification of the existence of that purpose.” State v.
Kimbrough, 

, 

 (2018) (internal quo-
tation marks omitted). Put another way, an attempt crime
focuses on the purpose of the individual’s conduct, not the
outcome of that conduct.
        On the one hand, attempted first-degree assault
requires proof of an intentional mental state, whereas
788                                   Dorn-Privett v. Brown

reckless endangerment requires proof of only a reckless
mental state. While proof of an intentional mental state
establishes a reckless mental state, the reverse is not true.
ORS 161.115(3); see, e.g., State v. Chapman, 

, 

 (2006), rev den, 

 (2007) (apply-
ing the distinction).
         On the other hand, reckless endangerment requires
that the defendant’s conduct create a substantial risk of
serious physical injury to another person, which attempted
first-degree assault does not require. Compare ORS 163.195
with ORS 163.185 and ORS 161.405(1). Conduct can con-
stitute a substantial step toward causing serious physical
injury without creating a substantial risk of that injury.
The inchoate crime of attempt does not require that the out-
come of the crime attempted—in this case, causing serious
physical injury to another as required for the crime of first-
degree assault, ORS 163.185—be likely or even possible; it
only requires that petitioner take steps with the criminal
purpose of achieving that outcome.
         As was true of menacing and attempted first-degree
assault, because recklessly endangering another person
and attempted first-degree assault each require proof of an
element that the other does not, they do not merge. Again,
because raising a debatable, yet ultimately legally incorrect
argument does not provide any benefit to a petitioner, it is
not “so obvious” that “any lawyer exercising reasonable pro-
fessional skill and judgment” would have argued for merger
in petitioner’s case.
         Because we determine that trial counsel’s represen-
tation did not fall below constitutional standards, we do not
address prejudice.
        Affirmed.