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Byers v. Premo

Summarized by: 

Date Filed: 02-13-2013
Case #: A146672
Armstrong, P.J. for the Court; Haselton, C.J.; and Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146672.pdf

Post-Conviction Relief: Petitioner must prove by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result. While petitioner satisfied the first prong when his counsel failed to tell him that by stipulating to facts at trial, he could face consecutive sentences, he failed to prove that but for counsel's advice, he would not have agreed to a stipulated facts trial.

Petitioner appealed the denial of his post-conviction relief. After a stipulated facts trial, Petitioner was convicted on all charges. The court imposed consecutive sentences under ORS 137.123(5), and Petitioner was sentenced to 1,070 months in prison. Petitioner applied for post-conviction relief, claiming that his counsel did not advise him that he could be sentenced consecutively based on the stipulated facts. In his deposition, Petitioner’s trial counsel explained that he did advise Petitioner that he could be sentenced consecutively, but he admitted that he had not calculated the maximum possible sentence. The post-conviction court denied relief, concluding that Petitioner’s agreement to a stipulated facts trial was knowing, intelligent, and voluntary. Petitioner appealed, and the Court affirmed for two reasons: (1) because the trial court relied on ORS 137.123(5) for sentencing, the stipulated facts did not provide the factual basis for imposing consecutive sentences, and (2) because Petitioner was not a credible witness, he failed to prove that but for counsel’s advice, he would not have agreed to a stipulated facts trial. Affirmed.