text:
    Alisha Dawn MYERS, Petitioner-Appellant, v. Nancy HOWTON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.
    A160648
    Court of Appeals of Oregon.
    Argued and submitted May 3, 2017. March 13, 2019
    Jason Weber argued the cause and filed the briefs for appellant. Also on the briefs was O'Connor Weber LLC.
    Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.
    EGAN, C. J.
    Petitioner appeals from an amended judgment denying post-conviction relief. In 2003, when she was 18 years old, petitioner was charged with eight felony counts in connection with the death of a single victim. After a bench trial and sentencing proceeding, petitioner was convicted on all counts and sentenced to life in prison without the possibility of parole. Petitioner appeals from the post-conviction court's denial of her petition for post-conviction relief. Her chief contention on appeal is that she did not validly waive her constitutional right to a jury trial in the criminal proceeding; petitioner concludes that her conviction is thus void under the Post-Conviction Hearing Act, specifically, ORS 138.530 (1)(a). In light of the post-conviction court's factual findings, we conclude that petitioner's waiver of her right to a jury trial was voluntary and, consequently, valid. Accordingly, we affirm. We reject without discussion petitioner's second and third assignments of error.
    We review a post-conviction court's denial of relief for legal error. Sullivan v. Popoff , 274 Or. App. 222, 230, 360 P.3d 625 (2015), rev. den. , 358 Or. 833, 370 P.3d 504 (2016). We "are bound by the post-conviction court's findings of historical fact if those findings are supported by the evidence in the record." Id. "If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistently with the post-conviction court's conclusions of law." Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). Thus, we begin by laying out the relevant facts consistent with the post-conviction court's findings.
    Petitioner was charged with four counts of aggravated murder, ORS 163.095, and one count each of felony murder, ORS 163.115, robbery in the first degree, ORS 164.415, burglary in the first degree, ORS 164.225, and unauthorized use of a vehicle, ORS 164.135. All the charges involved a single victim. After being charged, petitioner engaged in plea negotiations with the state. During those negotiations, petitioner spoke with the judge presiding over her pretrial hearings. He told her that "[i]f [she] did not take a plea bargain that he could almost guarantee that it would be bad and that [she] would probably, more than likely get the death penalty."
    At some point after that discussion with the judge, petitioner accepted the state's offer to refrain from seeking the death penalty in exchange for petitioner's agreement to waive her jury right in both the guilt and penalty phases of her trial. On January 30, 2004, petitioner, in front of her attorney, executed a written jury waiver that stated:

      ORS 138.530(1)(a) provides that post-conviction relief shall be granted if the petitioner establishes
      "[a] substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner'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."

   "I, the Defendant in the above entitled criminal proceeding, having been heretofore fully informed of all my several constitutional rights, including my right to a Jury Trial, and being well aware of my right thereto, do hereby knowingly waive (give up) my right to a Jury Trial and I do so freely and voluntarily without any threat, promise, or other form of coercion."

That waiver was submitted to the court along with a letter from Dr. Larsen, a psychiatrist who had evaluated petitioner. Larsen wrote that, in his "medical psychiatric opinion[, petitioner] meets the minimum standard to aid and assist in her own defense and understands the nature of the charges and potential penalties levied against her."

On March 22, 2004, at the beginning of petitioner's trial, petitioner engaged in a colloquy with the trial judge, a different judge from the one who presided over the pretrial hearings. The trial judge noted that a waiver of jury trial had been filed and asked petitioner's attorney, whether that was still petitioner's decision. This colloquy followed:

"[DEFENSE COUNSEL]: Yes, Your Honor. We would ask that the Court inquire, make the appropriate inquiries of [defendant] and it is our desire that the entire trial be tried before the court sitting without a jury.
"I have explained to [defendant] that she's constitutionally and statutorily entitled to a jury. I have advanced the opinion to her as her lawyer that it is in her best interest that we be trying it without a jury and she has agreed but I would appreciate inquiry into both points.
"THE COURT: Okay.
"[Defendant], I know there was-from discussions with the attorneys there was significant opportunity for [defense counsel] to talk to you before you signed this document back in January and I assume-and you've had opportunities since then to talk to [defense counsel] further, is that a fair statement?
"THE DEFENDANT: Yes.
"THE COURT: Okay. And I'm sure [defense counsel] explained and I would again state, you do have an absolute right to a jury trial if that is your decision and that's on all aspects of this matter. And because of the charges that would be a jury which would first hear evidence and make a determination as to whether you were not guilty or guilty of the Aggravated Murder charges and then the other charges and then, if, in fact, they found you guilty on the Aggravated Murder the jury would be making a decision as to what penalty would be imposed.
"And in this matter the [state's attorneys] had indicated that they would not be seeking on the Aggravated Murder a death penalty sentence if, in fact, you were waiving a jury. And so that was part of the agreement that the death penalty is not going to be an issue.
"So do you understand all of that?
"THE DEFENDANT: Yes.
"THE COURT: And is it, after consultation with [defense counsel], is it still your decision to proceed on this matter without a jury where I would be making the decisions as to whether or not beyond a reasonable doubt you committed any of these crimes and then if, in fact, you did commit the crimes and one of the decisions was you committed the aggravated murders, then I would be making a decision as to what sentence would be imposed. And the two sentences in that regard would be a life sentence without the possibility of parole or a life sentence with a possibility of parole after you had served thirty years.
"And so is that still your decision?
"THE DEFENDANT: Yes.
"THE COURT: Okay. Then is the State satisfied with that discussion with [defendant]?
"[THE STATE]: Yes, Your Honor. Thank you.
"THE COURT: [Defense counsel]?
"[DEFENSE COUNSEL]: Yes, I'm satisfied. Thank you.
"THE COURT: Then the matter would proceed as a non-jury matter, the written waiver. I would also-I think the record should reflect that there was documentation that a psychologist or psychiatrist who had examined and met with [defendant] was of an opinion that [defendant] was capable, mentally capable and of-in other words, there weren't any issues as far as signing the waiver of jury trial.
"[DEFENSE COUNSEL]: May I address that issue, Your Honor?
"THE COURT: Yes, sir.
"[DEFENSE COUNSEL]: Yes, Your Honor. I specifically asked that Dr. Jerry Larsen who is a psychiatrist in this state and who had visited with [defendant] on two or three previous occasions, visit her once more. I particularly needed to ascertain whether he was certain one, that she was competent to assist in her own defense and by the same token was competent to exercise that judgment to waive a jury. In his professional opinion as he indicated to you - or indicated to me and passed on to you - it was his opinion that she was competent to do those things.
"And I, myself, as her attorney, as a lay person in that area, feel she was competent to do, Your Honor.
"THE COURT: Okay. Then the matter would, as I indicated, proceed."

The court accordingly proceeded with a bench trial. The court found petitioner guilty beyond a reasonable doubt on Counts 1 through 5 and proceeded to the sentencing phase. Petitioner's attorney handed the court an additional waiver of jury, signed by petitioner and her attorney, which stated:

"I, [defendant], being informed of my rights particularly with respect to my right to a jury sentencing proceeding, and not acting pursuant to any promises or threats by any person, do hereby freely, voluntarily and knowingly waive the right to a jury sentencing proceeding pursuant to ORS 163.150(3)(a)(B) and the right to a jury trial pursuant to the 6th Amendment of the U.S. Constitution, and Article I, § 11 of the OR Const.
"I acknowledge and agree that I have discussed this waiver with my attorneys and that I understand my right to a jury sentencing proceeding and freely, voluntarily and knowingly waive the right to a jury sentencing proceeding in this case."

The following colloquy ensued:

"[DEFENSE COUNSEL]: I'm handing you an additional waiver of jury for the second aspect of this trial. It's the decision of the defense that that was not necessary. However, the position of the State was that it was necessary thus we are acquiescing. And if you would like to make inquiry of [defendant] we will put her acquiescence on the record.
"THE COURT: I'm-with my prior discussion with [defendant] prior to starting the proceedings and then with this one signed by her and witnessed by you I don't feel further inquiry is necessary.
"[DEFENSE COUNSEL]: Thank you."

Before announcing its sentence, the court commented that petitioner's childhood was "certainly a childhood which we would wish no one to have to endure." Indeed, throughout petitioner's life leading up to her crime, she, her parents, and her extended family had experienced significant and ongoing substance abuse and mental health issues, and petitioner had suffered significant physical, emotional, and sexual abuse. Nonetheless, ultimately, the court determined that a sentence of life imprisonment without the possibility of parole or release was appropriate. Petitioner appealed that sentence, and we affirmed in State v. Myers , 218 Or. App. 635, 180 P.3d 759, rev. den. , 344 Or. 671, 189 P.3d 26 (2008).

Petitioner sought post-conviction relief on several grounds. As pertinent to this appeal, petitioner claimed that she was coerced by the pretrial judge to agree to a bench trial, rendering her waiver invalid. Specifically, petitioner alleged that she was

"told by the [pretrial judge] that he would guarantee the death penalty for the Petitioner if she insisted upon a jury trial. This Judge stated to the Petitioner that she would die, if she insisted upon a jury trial. The Petitioner was intimidated and only because of the judge's influence did she agree to a court trial."

Defendant, the superintendent of Coffee Creek Correctional Institution, responded that petitioner had failed to provide any evidence of coercion and argued that the record demonstrates that petitioner voluntarily agreed to waive her right to a jury pursuant to the agreement that the state would refrain from seeking the death penalty. In her deposition with the state regarding her claim for post-conviction relief, petitioner testified:

"I can't remember specifically what he said, but he told me that he could almost guarantee that I would get the death penalty and asked me if that's what I wanted. Did I want to sit on death row. And him being a judge, you know, it scared me."

Petitioner further testified that, "being young and not knowing a whole lot about what was going on I was scared and I guess you could say they were really intimidating about it." The post-conviction court credited petitioner's testimony; it found that the judge had told petitioner that, "in his opinion, a jury would certainly return a death sentence."

After a hearing, the post-conviction court denied petitioner relief on all claims. On appeal, we reversed and remanded on the ground that the post-conviction court's judgment failed to comply with ORS 138.640(1) ; as a result, we did not address petitioner's substantive argument. Myers v. Brockamp , 271 Or. App. 716, 353 P.3d 1 (2015). On remand, the post-conviction court entered a more detailed judgment. As relevant to this appeal, the court determined that there was

"5. Insufficient proof of coercion by [the pretrial judge]. He told pet[itioner] that in his opinion, a jury would certainly return a death sentence. It was appropriate for the court to be sure pet[itioner] understood the reality of her situation. Pet[itioner] testified in her deposition that she knew she had the choice of court or jury. One fact that influenced the choice was the DA taking death off the table if she went court. It does not appear that pet[itioner] was incapable of making her own decision since she turned down a plea offer, that her [mother] and her attorney urged her to take.
"* * * * *
"7. Pet[itioner's] waiver of jury was knowing and voluntary. She signed a waiver, her attorney discussed the matter with [her] and the court inquired. At no time did she indicate to anyone any confusion. Clearly, she knew that the waiver meant the DA would not seek the death penalty. The DA's case was extremely strong. Conviction was highly likely. The choice benefitted pet[itioner]."

On appeal, petitioner assigns error to the post-conviction court's denial of her claim for relief regarding her jury trial waiver. See ORS 138.530(1)(a). Petitioner argues that the post-conviction court erred in concluding that her waiver was voluntary and not a product of coercion. The state first responds that petitioner's arguments are barred because they exceed the scope of the claim that she pleaded in her petition for post-conviction relief. We reject that argument. Suffice it to say, petitioner's arguments are "directly traceable" to the claim raised in the post-conviction petition. See Abbott v. Baldwin , 178 Or. App. 289, 296, 36 P.3d 516 (2001), rev. den. , 334 Or. 75, 45 P.3d 449, cert. den. , 537 U.S. 901, 123 S.Ct. 217, 154 L.Ed.2d 174 (2002).

Petitioner first argues that because she introduced a transcript of the colloquy of the waiver in question, the burden of proof shifted to the state to show that the waiver was valid. However, here, even assuming, without deciding, that the state assumed the burden of proof after petitioner provided a transcript of her colloquy that was "silent" on the issue of voluntariness, we conclude that the state met its burden. As explained below, the evidence in the record supports the post-conviction court's findings regarding petitioner's waiver, and those findings show that the waiver was voluntary, that is, not coerced by the judge's statement.

Turning to the merits, petitioner contends, regardless of allocation of the burden of proof, that the post-conviction court erred in determining that her jury waiver was valid under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. We understand petitioner to essentially reiterate the argument that she made to the post-conviction court: that she was coerced into waiving her right to a jury trial when the pretrial judge, in discussing the state's settlement offer, said that he could almost guarantee that a jury would impose the death penalty. Petitioner relies on United States v. Jackson , 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), to stand for her proposition that a waiver of a constitutional right in exchange solely for immunity from the death penalty is an involuntary waiver. Petitioner further argues that, because the trial court (1) did not specifically ask her whether she was making the decision to waive her jury right voluntarily and (2) only asked her three leading questions to which petitioner responded with the single word, "Yes," the trial court failed to ensure that her waiver was not the product of coercion. The state responds that Jackson does not stand for petitioner's proposition and argues that United States v. Brady , 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), makes it clear that Jackson did not hold that a waiver in exchange for avoiding the death penalty is necessarily invalid. Furthermore, the state contends that the record as a whole demonstrates that petitioner's waiver was voluntary, that is, that it was not coerced. The state argues that petitioner was given a "frank assessment of the likely outcome of a trial before a jury"-an assessment that a jury trial would likely result in a guilty verdict and imposition of the death penalty.

We reiterate that our review of a judgment in a post-conviction case is limited "to questions of law appearing on the record." ORS 138.105(2). This case, however, presents us with an obligation to carry out "our duty to interpret constitutional standards and require conformance thereto." See Ball v. Gladden , 250 Or. 485, 488, 443 P.2d 621 (1968) (explaining that whether historical facts are sufficient to sustain a finding of voluntariness of a criminal confession is separate from ordinary factual findings). In so doing, we are bound by the post-conviction court's determination of voluntariness only if the historical facts upon which that finding is based are sufficient to meet constitutional standards. Id. at 487-88, 443 P.2d 621.

We begin with the parties' arguments regarding Jackson and Brady . In Jackson , the United States Supreme Court invalidated a provision of a federal statute authorizing the death penalty only if a defendant invoked his or her right to a jury trial. Jackson , 390 U.S. at 581, 88 S.Ct. 1209. The court explained:

"Under the Federal Kidnaping Act, * * * the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die."

Id. The court reasoned that, "[i]f the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional." Id. at 582, 88 S.Ct. 1209. The court noted, however, that the statute was enacted with the legitimate "goal of limiting the death penalty to cases in which a jury recommends it." Id. Only because that goal could "be achieved without penalizing those defendants who plead not guilty and demand jury trial" did the court hold that the provision "needlessly penalize[d] the assertion of a constitutional right." Id. at 583, 88 S.Ct. 1209. The court explained:

"[T]he evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily."

Id. (emphases in original).

In Brady , the defendant contended "that Jackson requires the invalidation of every plea of guilty entered under [the Federal Kidnaping Act], at least when the fear of death is shown to have been a factor in the plea." 397 U.S. at 746, 90 S.Ct. 1463. The court stated that the defendant "read far too much" into Jackson and clarified that " Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not." Id. at 746-47, 90 S.Ct. 1463. Furthermore, the court explained that Jackson "neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' " Id. at 747, 90 S.Ct. 1463.

We agree with the state's reading of Brady that a plea of guilty (which includes the waiver of the right to a jury trial), even when encouraged by fear of a possible death sentence, is not inherently invalid. Therefore, in this case, to determine whether petitioner's waiver was valid under the federal and state constitutions, we must examine "the particular facts and circumstances surrounding [petitioner's] case, including the background, experience, and conduct of the accused." See Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (explaining standard for a valid waiver of the right to counsel); see also State v. Meyrick , 313 Or. 125, 132, 831 P.2d 666 (1992) ("Whether there has been an intentional relinquishment or abandonment of a known right or privilege will depend on the particular circumstances of each case, including the defendant's age, education, experience, and mental capacity; the charge (whether complicated or simple); the possible defenses available; and other relevant factors."). We focus our inquiry on whether the waiver demonstrates "an intentional relinquishment of a known right or privilege." State v. Harris , 339 Or. 157, 173, 118 P.3d 236 (2005) (quoting Johnson , 304 U.S. at 464, 58 S.Ct. 1019 ). As petitioner appears to contest only the "voluntary" aspect of her waiver, and not the "knowing" aspect, we begin our inquiry there.

Often, our analysis of whether a waiver was "voluntary" overlaps with an analysis of whether it was knowingly and intelligently made. See Meyrick , 313 Or. at 132 n. 8, 831 P.2d 666 (noting that the standards for a valid waiver are not articulated consistently, as "[a]ppellate courts are prone to substitute additional adjectives and adverbs in stating rules"). However, the Oregon Supreme Court has noted that "voluntary" is within the " 'intentional' component" of a valid waiver. Id. Thus, whether a waiver was "voluntary" is separable from the "known right" component that refers to a defendant's knowledge and understanding. Id.

In other contexts, the concept of voluntariness is explained as "an act of free will" or a free and unconstrained choice.

State v. De La Rosa , 228 Or. App. 666, 675, 208 P.3d 1012 (2009) (evaluating whether defendant's consent to search apartment was voluntary); State v. Flores , 280 Or. 273, 278, 570 P.2d 965 (1977) (evaluating whether defendant's consent to search property was voluntary). Voluntariness is frequently determined by the absence of explicit or implicit coercion. Meyrick , 313 Or. at 132 n. 8, 831 P.2d 666 ("In the absence of some form of coercion, most intentional acts also are voluntary acts.") In order for an act to be rendered "involuntary," a person's will must be "overborne and his [or her] capacity for self-determination critically impaired." Flores , 280 Or. at 278, 570 P.2d 965 (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ).

With those principles in mind, we proceed to our task of reviewing the historical facts found by the post-conviction court to see if they are sufficient to sustain a conclusion that petitioner's jury waiver was voluntary. Holcomb v. Hill , 235 Or. App. 419, 422, 233 P.3d 448 (2010). As we explain below, we conclude that the record, viewed in the light most favorable to the post-conviction court's resolution of the case, shows that petitioner's waiver of her right to a jury was voluntary.

Petitioner characterizes the pretrial judge's statement that she would likely face the death penalty if she chose a jury trial as a "threat of death" that overbore her will and coerced her into waiving her right. However, the post-conviction court understood it differently. The court found that the pretrial judge was ensuring that petitioner was aware of the "reality of her situation" and that the statement of that reality did not overwhelm or confuse petitioner. The evidence the court cited in making that finding adequately supports it. At her deposition, petitioner testified that she knew she had the choice of a bench trial or jury trial. She discussed the matter with her attorney, and she signed a written waiver in which she explicitly acknowledged that she was waiving her right "freely and voluntarily." Several months passed between petitioner signing the waiver and the colloquy with the trial judge, during which the judge offered her another chance to change her mind. Furthermore, before the state's offer at issue in this case, petitioner had rejected a previous plea offer by the state, demonstrating her ability to make independent decisions regarding her case.

Petitioner's decision to waive her right to a jury trial may have been affected by the fear of facing the death penalty, but the record, viewed consistently with the post-conviction court's findings, does not indicate that the pretrial judge's statements impaired her capacity for self-determination or overbore her free will. To the contrary, the facts demonstrate that petitioner was able to rationally and independently weigh the decision of whether to accept the state's offer to take the death penalty off the table in exchange for her waiver. The court scrutinized petitioner's circumstances, including her history of mental health and substance abuse issues and her age when she entered her waiver. Petitioner was evaluated by a psychiatrist who opined that she was capable of making the decision on her own, and petitioner has not explained why her age, background, or life experiences rendered her decision an "involuntary" one. Petitioner is correct that the judge did not ask her directly whether her waiver was "voluntary." However, given that a colloquy is not constitutionally required for a valid jury trial waiver, that oversight alone does not outweigh the record supporting a finding of voluntariness. See State v. Wigglesworth , 186 Or. App. 374, 378, 63 P.3d 1185 (2003) (holding that, under Article I, section 11, "a trial court that receives a written jury waiver from a represented defendant is not required to inquire whether the defendant's waiver was voluntary"). In sum, the historical facts on the record are legally sufficient to support the post-conviction court's determination of voluntariness.

Affirmed.

      In the remainder of this opinion, we refer to defendant Howton as the "state" for ease of reference. See Richardson v. Belleque , 362 Or. 236, 238 n. 1, 406 P.3d 1074 (2017).

      Petitioner characterizes that colloquy as being "silent" on the issue of voluntariness, and thus concludes that it is silent on the issue of validity. Generally, in post-conviction proceedings, the burden is upon the petitioner to prove the allegations of his or her petition by a preponderance of the evidence. Montez v. Czerniak , 355 Or. 1, 15, 322 P.3d 487 (2014) ; Boag v. State of Oregon , 44 Or. App. 99, 101, 605 P.2d 304 (1980) ; ORS 138.620(2). The burden of proof is allocated that way because we recognize a presumption of regularity respecting criminal convictions that are unappealed or that have become final after appeal. State v. Probst , 339 Or. 612, 628, 124 P.3d 1237 (2005) (citing Schram v. Gladden , 250 Or. 603, 605, 444 P.2d 6 (1968) ). However, "a valid waiver of constitutional rights will not be found" from a silent record, and if the record is silent as to the validity of a waiver, "[t]he state must prove either a valid waiver or that petitioner had knowledge of his rights." Boag , 44 Or. App. at 101, 605 P.2d 304. For example, the state assumes the burden of proof if a petitioner waived the constitutional right to counsel and the court's record is silent on whether the petitioner did so knowingly. Miller v. Gladden , 249 Or. 51, 54, 437 P.2d 119 (1968) ("If a knowing waiver is not shown by the court's records, and petitioner testifies he had no knowledge of his right to be represented, the burden is upon the state to prove circumstances from which the post-conviction trial judge can and is willing to infer that petitioner had knowledge of this right."); See also Stelts vs. State , 299 Or. 252, 256-57, 701 P.2d 1047 (1985) (defendant did not have to establish "prejudice" to obtain post-conviction relief after pleading guilty without knowledge of his constitutional right). In sum, we exercise extreme caution with waivers of constitutional rights and, in the event that we are presented with a record silent on the issue of validity, we presume a waiver is invalid.

      Article I, section 11, provides, in part:
      "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * * provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing[.]"

      The Sixth Amendment provides, in part:
      "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]"

      We agree with petitioner that, when a court endeavors to have a colloquy to ensure that constitutional rights are being intentionally and knowingly relinquished, leading questions are not the most effective manner of doing so. As the Supreme Court has noted,
      "[a] criminal trial setting can be an intimidating and frightening place. Leading questions put to a defendant may be answered in the affirmative without actual understanding."
      Meyrick , 313 Or. at 133 n. 9, 831 P.2d 666. Indeed, this case would have been a good opportunity for the court to exercise one "method of ensuring that a defendant understands the information given by the court," that is, by having "the defendant repeat the essence of the information or explain his or her understanding of it to the court." Id. However, the trial court's failure to follow that suggestion is not a basis for reversal. Id.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Michael Steven CONNOLLY, aka Steven Michael Connolly, II, Defendant-Appellant.
    A160490
    Court of Appeals of Oregon.
    Argued and submitted May 18, 2017. March 13, 2019
    Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

      Egan, C. J., vice Shorr, J.

   EGAN, C. J.

Defendant appeals a judgment of conviction, after a bench trial, for five counts of identity theft, ORS 165.800, assigning error to the trial court's denial of his motion for judgment of acquittal (MJOA). While in the custody of the Multnomah County Jail on a different charge, defendant used the jail telephone five separate times, and each time, the call was connected to the personal identification number (PIN) of another inmate. At trial, the state presented testimony identifying defendant's voice on the calls and establishing the jail rule of "one inmate per phone." Based on that evidence, the trial court denied defendant's MJOA and convicted defendant on all counts. On appeal, defendant argues that the trial court erred by denying his MJOA because the state did not present sufficient evidence from which a reasonable trier of fact could have found that he obtained, possessed, transferred, uttered, or converted the PINs to his own use. The state acknowledges that defendant did not "utter," "transfer," or "convert" the PINs "to his own use," but argues that a reasonable trier of fact could have found that defendant "possessed" or "obtained" them. We agree with the state and, therefore, affirm.

In reviewing the denial of a motion for judgment of acquittal, we state the facts in the light most favorable to the state. State v. Davies , 195 Or. App. 534, 536, 98 P.3d 757 (2004). Defendant violated a pretrial release agreement on a domestic violence charge. As a result, the trial court ordered him to await trial in the custody of the Multnomah County Jail and prohibited him from contacting K, the alleged victim in the domestic violence case. At the jail, telephone calls are monitored, logged, and recorded by a telephone system administered by a private contractor. While in jail, defendant spoke to K on five separate phone calls. The calls were not connected to defendant's PIN. Four of the calls were connected to one inmate's PIN, and one call was connected to a different inmate's PIN. Both of those inmates were housed in the same jail unit as defendant.

During defendant's bench trial, the state called two employees from the Multnomah County Sheriff's Office (MCSO), Banta and Fleming, to explain how jail inmates make outgoing calls. Banta, a supervision deputy for pretrial services and former corrections deputy inside the jail, explained that there is either "a bank of phones where the inmates stand next to each other" or "the phones are located on poles that are in the center of the unit." Fleming, the records coordinator for MCSO, explained that "the rule is one inmate * * * for a phone" and that, if a deputy sees multiple inmates at a phone, they are "supposed to break it up." To make a call, Banta explained that inmates "dial an outgoing phone number and then they're required to enter a PIN, * * * and then follow the prompts all the way through." The PIN is a combination of an inmate's jail identification number and date of birth. At the beginning of the call, before the parties are connected, a recording informs inmates that calls are monitored and that they may receive disciplinary sanctions for permitting other inmates to use their PINs, and instructs inmates about how to proceed with the call. The state played portions of the five calls between K and defendant, and Banta was able to identify defendant's voice on each. No voices other than the recording, defendant, and K were heard on any of the calls.

At the close of the state's case, defendant moved for a judgment of acquittal on all counts, arguing that there was insufficient proof about the way the calls in question were placed for a trier of fact to find that defendant committed identity theft under ORS 165.800(1). That statute provides:

"A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person's own use the personal identification of another person."

The trial court denied defendant's motion. On appeal, defendant again argues that the state presented insufficient evidence to establish that he committed "culpable acts" under the statute, specifically, acts of "obtaining, possessing, transferring, uttering, or converting" other inmates' PINs for his own use. The state responds that the evidence sufficed to permit a reasonable trier of fact to find that defendant "obtained" or "possessed" the PINs.

When a defendant's challenge to the denial of an MJOA turns on the meaning of a statute, we review the trial court's construction of the statute for legal error. State v. Holsclaw , 286 Or. App. 790, 792, 401 P.3d 262, rev. den. , 362 Or. 175, 406 P.3d 610 (2017). "Then, based on the proper construction of the statute, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the elements of the offense beyond a reasonable doubt." Id.

Oregon appellate courts have previously construed parts of ORS 165.800(1) in State v. Ritter , 280 Or. App. 281, 380 P.3d 1160 (2016), and State v. Medina , 357 Or. 254, 355 P.3d 108 (2015). In Ritter and Medina , the crime was charged as "convert[ing] to the person's own use" the personal identification of another person, and our inquiry focused on that statutory term. Ritter , 280 Or. App. at 286, 380 P.3d 1160. As the dispute in this case is whether defendant "obtained" or "possessed" the personal identification of another under the statute, Ritter and Medina are not directly applicable. However, because Ritter is somewhat factually similar to this case, and because the statutory provision it interpreted also involves some exercise of "possession and control," it is helpful to begin by setting forth relevant parts of our discussion in that case.

The defendant in Ritter was an inmate when he "enlisted the help of his cellmate to place a call" to C, his girlfriend, whom he was prohibited by court order from contacting. 280 Or. App. at 284, 380 P.3d 1160. The cellmate entered his own PIN, stated his name to get past the verification requirement of the phone system, and dialed. "[W]hen C answered, the cellmate told her, 'Hold on a sec, ok? * * * Don't fuck it up though, okay? Please.' " Id. The defendant then took the telephone from the cellmate and talked with C. Based on that call, the state charged the defendant with identity theft. Id. On appeal, we explained:

"[T]he parties' arguments focus on the narrow issue of whether, by taking over the telephone call that the cellmate made using his own PIN, defendant converted that PIN to his own use. The term 'converts to the person's own use' is not defined in ORS 165.800. However, the Supreme Court construed that phrase in Medina , 357 Or. at 271 [355 P.3d 108], concluding that, 'to convert another person's personal identification to his or her own use, a defendant must take, appropriate, or somehow divest the other person of their personal identification and, with the requisite intent, use that personal identification for the defendant's own purposes."

Id. at 286-87, 380 P.3d 1160 (emphasis in original). Because the Supreme Court did not explain what "appropriate" means, we continued our statutory analysis, eventually concluding that

"to 'appropriate' the personal identification of another person for the purpose of converting that personal identification to defendant's own use, and thereby committing identity theft, a defendant must take, acquire, or claim the personal identification of another person either by possessing or exercising some control over it ."

Id. at 287-88, 380 P.3d 1160 (emphasis added). We further concluded that the phrase " 'converts to the person's own use,' and, by inclusion, the term 'appropriates,' " means "that the act is done without the permission or consent of the person identified by the personal identification." Id. at 288, 380 P.3d 1160.

We ultimately reversed the trial court's denial of the defendant's MJOA, because the record in Ritter contained "no evidence from which a rational trier of fact could find that defendant 'appropriated' his cellmate's PIN." Id. at 289, 380 P.3d 1160. In particular, there was "no evidence that defendant took or acquired the cellmate's PIN, claimed the PIN as his own, or ever possessed or exercised any control over the PIN." Id. Thus, the evidence supported "only the inference that defendant's cellmate willingly helped defendant by providing him with access to the telephone call that the cellmate himself made using his own PIN." Id. We rejected the state's argument that, by "taking over the call," defendant appropriated the PIN, because,

"even if defendant 'appropriated' the telephone call by taking it over from his cellmate, it does not follow that defendant therefore appropriated the PIN that was required to initiate the call, much less converted that PIN to his own use within the meaning of ORS 165.800. Rather, defendant's cellmate gave defendant access to a benefit that the cellmate's use of his own personal identification provided him. Defendant did not appropriate that personal identification, just as a person who sits down in a friend's living room to watch a movie on an online video streaming service with the friend does not appropriate the personal identification that the friend used to log in to her account[.]"

Id. at 290, 380 P.3d 1160. In sum, we reversed the defendant's conviction, because the state presented insufficient evidence of "appropriation," or in other words, insufficient proof that the defendant took, acquired, or claimed the personal identification of another person by possessing or controlling it without the permission of the person it identifies. Id.

In this case, the parties' arguments focus on a separate, but similarly narrow issue: whether, by speaking on calls placed with other inmates' PINs, in a jail with a rule of "one inmate per phone," a factfinder could infer that defendant "possessed" or "obtained" the other inmates' PINs. "Possess" and "obtain" are not statutorily defined. However, the parties agree, and we concur, that the essence of both terms is the exercise of control. See Ritter , 280 Or. App. at 288, 380 P.3d 1160 (equating "possess" with "exercising some control over"). Indeed, the dictionary defines "possession" as "the act or condition of having in or taking into one's control or holding at one's disposal," and "obtain" as "to gain or attain possession or disposal of usu. by some planned action or method." Webster's Third New Int'l Dictionary 1770, 1559 (unabridged ed. 2002). The inquiry is similar to that in Ritter , where we were first concerned in part with whether the defendant had "exercised control over" his cellmate's PIN. However, because this case only involves whether defendant "possessed" or "obtained" other inmates' PINs, and not whether defendant "appropriated" the PINs "for his own use," our analysis stops at the question of control. In other words, because the state concedes that defendant did not "convert to his own use" the PINs, it is immaterial to our inquiry in this case whether defendant possessed the PINs without the permission of the person they identified.

Turning to the facts of this case, we conclude that the record contains sufficient evidence from which a rational trier of fact could find, by making reasonable inferences, that defendant "possessed" or "obtained" the other inmates' PINs. Defendant argues that the state failed to show that defendant had control over the PINs, because the evidence does not show that defendant keyed in the PINs, knew the PINs, or that other inmates informed defendant of the PINs. Defendant points out that "it is possible for one inmate to enter his PIN and pass the phone to another inmate or leave the phone off its hook for another inmate to walk over and pick it up." The state, however, argues that because no voices other than defendant's and K's were heard on the phone calls, a reasonable factfinder could infer that defendant used the inmates' PINs to place the calls. Relatedly, the state contends that, in view of the evidence that the jail has a rule of one inmate per telephone, which deputies enforce by "breaking up" inmates if they see them violating the rule, a reasonable factfinder could infer that defendant himself entered the PIN number, rather than one of the inmates. As explained below, we agree with the state.

The state did not present any direct evidence that defendant had control over the PINs of the other inmates. The state may properly rely on the circumstantial evidence in the record to conclude that a reasonable factfinder could infer from that evidence that defendant had control over the PINs. See State v. F. R.-S. , 294 Or. App. 656, 660, 432 P.3d 1149 (2018). However, the state may not rely on evidence that requires speculation or guesswork. State v. Bivins , 191 Or. App. 460, 467, 83 P.3d 379 (2004). "The line between a permissible, reasonable inference and impermissible speculation is drawn by the laws of logic." F. R.-S. , 294 Or. App. at 660, 432 P.3d 1149 (internal quotation marks omitted). We agree with the state that the evidence, along with the reasonable inferences flowing from the evidence, is sufficient to support the finding that defendant had control over, and thus "obtained" and "possessed" the other inmates' PINs. Although not the only reasonable inferences on this record, the state's asserted inferences are reasonable, and do not make too great an inferential leap to be speculative. Defendant made five different telephone calls under PINs that were not his own. Defendant's and K's voices were the only voices on each call. The jail rule is that only one inmate is allowed at each phone. From that evidence, viewed in the light most favorable to the state, a reasonable factfinder could infer that, in order to speak on the calls, defendant had to have exercised control over the other inmates' PINs.

Affirmed.

      ORS 165.800 was amended after defendant was charged; however, because the changes are not material to this appeal, we refer to the current version of the statute.

      ORS 165.800 was amended after defendant was charged. However, as those amendments have no affect on the outcome of this case, we refer to the current version of the statute in this opinion.