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    Esteban CHAVEZ, Petitioner on Review, v. STATE of Oregon, Respondent on Review.
    CC 111114537 (SC S064968)
    Supreme Court of Oregon.
    Argued and submitted March 8, 2018, at the University of Oregon School of Law, Eugene, Oregon. April 4, 2019
    Steven E. Benson, Portland, argued the cause and filed the brief for petitioner on review.
    Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ellen F. Rosenblum, Attorney General.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore.
    KISTLER, S. J.
    In 1999, petitioner pled guilty to delivering cocaine. In 2011, he initiated this post-conviction proceeding. Relying on Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), he alleged that his trial attorney failed to advise him about the immigration consequences of his guilty plea in violation of the Sixth Amendment. The trial court dismissed the petition both because it was untimely and because Padilla does not apply retroactively. The Court of Appeals affirmed the post-conviction court's judgment on the latter ground. Chavez v. State of Oregon , 283 Or.App. 788, 391 P.3d 801 (2017). On review, petitioner challenges both grounds that the trial court identified for dismissing his petition. We hold that, although the petition was timely, the only retroactivity argument that petitioner raises on review-that Oregon's post-conviction statutes require that all new constitutional rules be applied retroactively-is not well taken. Accordingly, we affirm the Court of Appeals decision and the trial court's judgment.
    Because the trial court granted the state's motion to dismiss the petition for post-conviction relief, we assume that the allegations in the petition are true and state the facts consistently with those allegations. In 1999, petitioner was charged with possessing and delivering cocaine. Before trial, the district attorney offered petitioner a plea deal: If petitioner would plead guilty to delivering a controlled substance, the state would dismiss the possession charge and recommend a light sentence. In discussing the plea with petitioner, petitioner's lawyer did not advise him of the immigration consequences of pleading guilty to delivering a controlled substance. However, as part of the plea deal, petitioner did read and sign a plea petition, which recited:
    "I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States."
    Petitioner's attorney discounted that warning; she advised him that she "did not think [he] would be deported as a result of his guilty plea." Finally, petitioner alleges that he "has no recollection" whether the trial judge discussed the immigration consequences of his plea with him before he pled guilty to delivering a controlled substance. Petitioner did not appeal from the resulting judgment of conviction, which became final on September 2, 1999.
    In 2011, petitioner applied to become a naturalized United States citizen. In processing his application, the Department of Homeland Security discovered that he had been convicted of delivering a controlled substance and, as a result, was subject to deportation. On November 4, 2011, petitioner filed his first petition for post-conviction relief. He alleged that the Court's 2010 decision in Padilla demonstrated that his trial attorney's advice fell below the standard that the Sixth Amendment requires. Specifically, petitioner alleged that his attorney was constitutionally deficient because she did not advise him that, if he pled guilty to delivering a controlled substance, he would almost certainly be deported.
    The state moved to dismiss the petition, and the trial court granted the motion. The trial court reasoned that the petition was time-barred because petitioner reasonably could have anticipated Padilla and alternatively that Padilla did not apply retroactively to decisions that became final before it was decided. The Oregon Court of Appeals affirmed the trial court's judgment, reasoning that the argument that petitioner advanced for applying Padilla retroactively could not be reconciled with the Court of Appeals and this court's decisions. Chavez , 283 Or.App. at 796-99, 391 P.3d 801.
    On review, the parties raise two issues. The first is whether the two-year statute of limitations in ORS 138.510(3)(a) bars petitioner's Sixth Amendment claim. The second is whether, if it does not, the Court's 2010 decision in Padilla applies retroactively to a conviction that became final in 1999. We begin with the first issue.
    I. STATUTE OF LIMITATIONS
    ORS 138.510(3) provides:
    "A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date that the challenged conviction became final], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition."
    As this court has explained, that subsection contains both a limitations period within which a post-conviction petition must be filed (two years from the date that the conviction became final) and an escape clause (the limitation period does not apply if the grounds for relief asserted in the petition could not reasonably have been raised within the limitations period). See Bartz v. State of Oregon , 314 Or. 353, 357-58, 839 P.2d 217 (1992).
    Because petitioner filed this petition for post-conviction relief approximately 12 years after his conviction became final, ORS 138.510(3) bars his petition unless the ground for relief asserted in the petition comes within the escape clause. Generally, cases invoking the escape clause fall into one of two categories. In one, the applicable law is established within the two-year limitation period, and the question is whether the petitioner reasonably could have asserted that available legal ground for relief. Compare Gutale v. State of Oregon , 364 Or. 502, 519-20, 435 P.3d 728 (2019) (holding that, even though Padilla had been decided when the petitioner pled guilty, a reasonable trier of fact could find that the petitioner was not on notice that he should investigate the possibility of adverse immigration consequences within the two-year limitations period), with Bartz , 314 Or. at 359-60, 839 P.2d 217 (holding that the petitioner should have discovered within the limitations period a statutory defense to the charge to which he pled guilty). In the other category, a new constitutional rule is announced after the two-year limitation period expired, and the question is whether that "new rule" reasonably could have been raised within the limitations period. See Verduzco v. State of Oregon , 357 Or. 553, 355 P.3d 902 (2015).
    This case falls in the latter category. Petitioner argues that, when he pled guilty in 1999, the accepted understanding was that failing to warn a defendant about the collateral consequences of a guilty plea, such as the possibility of deportation, did not constitute inadequate assistance for the purposes of the Sixth Amendment. Rather, a lawyer would fall below the standard that the Sixth Amendment required only if he or she failed to warn a defendant about the direct consequences of a plea, such as the maximum sentence that could be imposed as a result of the plea. The state responds that, as a matter of state constitutional law, this court required lawyers to advise their clients about the immigration consequences of a guilty plea as early as 1985 and that, before the Court decided Padilla in 2010, petitioners seeking post-conviction and habeas relief had argued that their lawyers violated the Sixth Amendment by failing to advise them of the immigration consequences of their pleas. In considering the parties' arguments, we first describe briefly the state of the law before Padilla and then turn to the question whether petitioner's Sixth Amendment claim reasonably could have been raised within two years of September 2, 1999, the date his conviction became final.
    In 2006, this court explained that the Sixth Amendment required defense counsel to advise their clients of the direct but not the collateral consequences of a guilty plea. Gonzalez v. State of Oregon , 340 Or. 452, 457-58, 134 P.3d 955 (2006). As petitioner notes, the direct consequences of a plea include the maximum and mandatory minimum sentences that can be imposed as a result of the plea while the collateral consequences include deportation, the loss of a license to practice a profession, the termination of parental rights, and the like. Id. (citing Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas , 87 Cornell L. Rev. 697, 699-701 (2002) ). As a result, before Padilla , the "almost unanimou[s]" rule was that a defense counsel's failure to advise a client about the immigration consequences of a guilty plea did not provide a basis for seeking state post-conviction or federal habeas relief. Chaidez v. United States , 568 U.S. 342, 350, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).
    Oregon was an exception to that rule. In 1985, this court held that lawyers will fall below the standard that the Oregon Constitution requires if they fail to warn clients who are not United States citizens that a guilty plea "may result" in deportation and other adverse immigration consequences. Lyons v. Pearce , 298 Or. 554, 567, 694 P.2d 969 (1985). In 2006, this court reaffirmed Lyons . Gonzalez , 340 Or. at 459, 134 P.3d 955. Specifically, it considered and rejected a claim that, in light of changes to federal immigration law in 1996, the Oregon Constitution now required lawyers to warn their clients that deportation was a virtual certainty if they pled guilty to certain enumerated crimes. Id. This court instead reaffirmed that it was sufficient under the Oregon Constitution to advise a client of the maximum collateral consequence (deportation) that "may result" from a guilty plea. Id. In reaffirming Lyons , this court recognized that, outside of Oregon, the general rule was that failing to advise a client of the immigration consequences of a plea was simply not a cognizable basis for an inadequate assistance claim. See id. at 458, 134 P.3d 955.
    Four years after Gonzalez , the United States Supreme Court took a different course. After noting that, as a result of changes to immigration law in 1996, deportation was "virtually inevitable" for persons convicted of a specified class of crimes, the Court turned to the issue whether failing to advise a defendant of the immigration consequences of a guilty plea could be asserted as a basis for a Sixth Amendment inadequate assistance claim. In considering that issue, the Court noted that it had never adopted a distinction between "direct" and "collateral" consequences of a plea for the purposes of the Sixth Amendment. Padilla , 559 U.S. at 365, 130 S.Ct. 1473. The Court, however, found it unnecessary to decide the validity of that distinction in other contexts because it concluded that deportation, as a consequence of a criminal conviction, was sufficiently intertwined with the criminal process and sufficiently significant to a defendant considering a guilty plea to hold that the failure to advise a client of the immigration consequences of pleading guilty can violate the Sixth Amendment. Id. at 366, 130 S.Ct. 1473.
    Having reached that conclusion, the Court recognized that the federal immigration laws are not always clear regarding the immigration consequences for persons convicted of some crimes. Id. at 369, 130 S.Ct. 1473. It also recognized, however, that, for persons convicted of other, specified crimes, the immigration consequences are "succinct, clear, and explicit." Id. at 368, 130 S.Ct. 1473. The Court reasoned that, "when the deportation consequence [of a criminal conviction] is truly clear, as it was in this case, the duty to give correct advice is equally clear." Id. at 369, 130 S.Ct. 1473. That is, when a citizen of another country is considering pleading guilty to one of the specified offenses for which removal is "virtually inevitable," constitutionally adequate defense counsel should advise their clients of that likelihood.
    Padilla altered the legal landscape in two respects. First, it departed from what had been the "almost unanimou[s]" rule that the failure to advise a client of the immigration consequences of a guilty plea will never be a cognizable basis for asserting an inadequate assistance claim under the Sixth Amendment. See Chaidez , 568 U.S. at 350, 133 S.Ct. 1103. Second, Padilla imposed a higher requirement on counsel than this court had done in Lyons in 1985 and in Gonzalez in 2006. After Padilla , if the immigration consequences of pleading guilty to certain crimes are "truly clear," as they were in this case, then the Sixth Amendment requires defense counsel to advise their clients not merely that a conviction "may result" in adverse immigration consequences but that deportation and other adverse immigration consequences will be "virtually inevitable" as a result of the plea.
    With that background in mind, we turn to the state's argument that petitioner reasonably could have raised his Sixth Amendment claim within two years of the date that his conviction became final in 1999. As we explained in Verduzco , the fact that a constitutional rule has not been definitively established does not necessarily mean that that ground for relief could not reasonably have been raised:
    " 'The touchstone is not whether a particular question is settled , but whether it reasonably is to be anticipated so that it can be raised and settled accordingly. The more settled and familiar a constitutional or other principle on which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely, if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised.' "
    Verduzco , 357 Or. at 571, 355 P.3d 902 (quoting Long v. Armenakis , 166 Or.App. 94, 101, 999 P.2d 461 (2000) ; emphases in original).
    In Verduzco , the petitioner filed a second post-conviction petition after the Court decided Padilla in 2010, and the state argued that a related procedural statute barred his Sixth Amendment Padilla claim because he reasonably could have raised that claim in the first post-conviction petition he filed in 2006. Id. at 573, 355 P.3d 902 ; see ORS 138.550(3) (barring a successive post-conviction petition when the ground for relief asserted in the petition reasonably could have been raised in an earlier petition). In considering that issue, we began by noting that it might be a close question whether the petitioner in Verduzco reasonably could have asserted an inadequate assistance claim based on Padilla in his first post-conviction petition, were it not for one fact: The petitioner had asserted such a claim in his first post-conviction petition. 357 Or. at 572-73, 355 P.3d 902. As we explained, "[h]aving raised those grounds for relief in his first post-conviction petition, he cannot claim that he could not reasonably have raised them" until his second petition. Id. at 573, 355 P.3d 902.
    We also noted that the proceedings in Verduzco were contemporaneous with the proceedings in Padilla . Id. at 557-59, 355 P.3d 902. Not only had Verduzco litigated a virtually identical Sixth Amendment claim at roughly the same time that Padilla was pursuing his claim, but the United States Supreme Court had granted Padilla's petition for certiorari before the time expired for Verduzco to file a petition for certiorari . Id. at 558 n. 3, 355 P.3d 902. As a matter of timing, if Verduzco had petitioned for certiorari , the Court could have held his case until it decided Padilla and then granted, vacated, and remanded Verduzco's case for reconsideration in light of the Court's decision in Padilla . See id. at 573 n. 20, 355 P.3d 902. We accordingly concluded that Verduzco reasonably could have raised his Sixth Amendment inadequate assistance claim when he filed his first post-conviction petition. Id. at 573, 355 P.3d 902.
    This case arises in a different posture. In this case, petitioner never asserted a claim that was virtually identical to the claim that the Court later decided in Padilla , as the petitioner in Verduzco did. Accordingly, we cannot say, as we did in Verduzco , that petitioner reasonably could have anticipated Padilla in 2001 because he had, in fact, anticipated it. Moreover, the timing in this case is problematic for the state. Verduzco was contemporaneous with Padilla . For the state to prevail here, it has to persuade us that a Padilla claim reasonably could have been raised five years before the petitioners in Verduzco and Padilla raised that claim-i.e. , within two years of September 2, 1999, the date that petitioner's conviction became final. On this record, we cannot say that petitioner reasonably could have done so.
    As the Court explained in Chaidez , the "almost unanimou[s]" rule before Padilla was that a Sixth Amendment inadequate assistance claim based on the failure to advise a defendant of the immigration consequences of a guilty plea was simply not cognizable. 568 U.S. at 350, 133 S.Ct. 1103. It is certainly true, as the state notes, that some litigants were raising similar claims before Padilla . However, those claims did not meet with success in the federal courts, and the question is not whether such a claim conceivably could have been raised. Verduzco , 357 Or. at 566, 355 P.3d 902. Rather, it is whether it reasonably could have been raised. Id. As this court recognized in Verduzco , when the underlying principle is "novel, unprecedented, or surprising," and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for relief could not reasonably have been asserted. Indeed, if this court did not anticipate Padilla 's holding when we decided Gonzalez in 2006, we can hardly say that petitioner should have anticipated it five years earlier in 2001. We accordingly hold that his petition comes within the escape clause in ORS 138.510(3).
    II. RETROACTIVITY
    Having concluded that petitioner's Sixth Amendment claim is not time-barred, we turn to his argument that Padilla applies retroactively in state post-conviction proceedings. On that issue, petitioner recognizes that Padilla announced a new federal constitutional rule that does not apply retroactively in federal court. He argues, however, that federal law permits states to apply new federal rules, such as the one announced in Padilla , retroactively even though those rules do not apply retroactively in the federal courts. Additionally, he contends that, as a matter of state law, Oregon's 1959 post-conviction statute requires that all new state and federal constitutional rules apply retroactively in state post-conviction proceedings.
    Before turning to petitioner's argument that the text, context, and history of Oregon's 1959 post-conviction statute require that all new federal constitutional rules apply retroactively in state post-conviction proceedings, we first discuss federal retroactivity analysis. Oregon adopted its 1959 post-conviction statute as federal retroactivity analysis was being developed, and an understanding of the federal analysis provides important context for understanding the Oregon statute. With the federal cases in mind, we then turn to petitioner's state statutory arguments.
    A. Federal Retroactivity Analysis
    Before 1915, the grounds for petitioning for a writ of federal habeas corpus were limited; the only basis that a petitioner could assert was that the court that had rendered the judgment lacked jurisdiction. See Danforth v. Minnesota , 552 U.S. 264, 271, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (discussing the development of federal habeas corpus law). In 1915, the grounds for petitioning for habeas were expanded to include the "depriv[ation] * * * of [a person's] life or liberty without due process of law," but only if the constitutional violation was so serious that it rendered the conviction void for lack of jurisdiction. Id. at 272, 128 S.Ct. 1029 (citing cases that had granted habeas relief when, for example, mob violence had dominated the petitioner's criminal trial). Perhaps because those cases turned primarily on the application of settled principles to new factual situations, the question whether a "new" federal constitutional rule applied retroactively never arose. Cf. Desist v. United States , 394 U.S. 244, 263, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting) (noting that only new rules would raise a question of retroactive application).
    In 1953, the Court expanded the grounds on which federal habeas relief could be granted to violations of all applicable constitutional rights. Brown v. Allen , 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). However, even after Brown , procedural restrictions on asserting federal habeas claims meant that "[i]t was the rare case in which the habeas petitioner had raised a 'new' constitutional argument both at his original trial and on appeal" so as to allow a habeas court to consider whether to apply a "new" constitutional rule to convictions which had become final. Desist , 394 U.S. at 261, 89 S.Ct. 1030 (Harlan, J., dissenting). As Justice Harlan explained in Desist , "[t]he conflict between retroactivity and finality only became of major importance [in 1963] with the Court's decision in Fay v. Noia , [372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ]." Id. Only after Fay removed the procedural restrictions that limited the instances in which the retroactivity of new rules was at issue did the conflict between retroactivity and finality become acute. Indeed, before 1959, when Oregon enacted its post-conviction statute, the Court had applied a new constitutional rule retroactively only once. See Eskridge v. Washington Prison Board , 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (applying equal protection holding retroactively); cf. Linkletter v. Walker , 381 U.S. 618, 628 n 13, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (listing cases in which the Court had applied new constitutional rules retroactively).
    From 1961 to 1964, the Court expanded the list of federal constitutional rights that apply directly to the states and applied those rights for the first time (and thus retroactively) to two and perhaps three cases arising on federal habeas corpus. See Linkletter , 381 U.S. at 628 n. 13, 85 S.Ct. 1731 (listing cases). In 1965, the Court held that a new constitutional rule-that the Fourth Amendment exclusionary rule applies to the states-should be given only prospective effect. Linkletter , 381 U.S. at 639, 85 S.Ct. 1731. The rationale in Linkletter prompted significant criticism and led to what some perceived as inconsistent results. See Mackey v. United States , 401 U.S. 667, 676-77, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part); Desist , 394 U.S. at 258-59, 89 S.Ct. 1030 (Harlan, J., dissenting); Paul J. Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law , 79 Harv. L. Rev. 56, 77 (1964).
    In 1989, a plurality of the Court sought to bring some order to the field. It announced a set of principles to govern the retroactive application of new federal constitutional rules, which it drew in large part from Justice Harlan's separate opinions in Desist and Mackey . See Teague v. Lane , 489 U.S. 288, 303-08, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). Teague defined what constitutes a "new" constitutional rule and explained that new federal constitutional rules should apply to all cases pending on direct appeal when the rule is announced. Id. at 301, 304-05, 109 S.Ct. 1060. However, Teague recognized that
    " '[t]he interest in leaving concluded litigation in a state of repose * * * may quite legitimately be found by those responsible for defining the scope of the [federal] writ [of habeas corpus] to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.' "

      Duncan and Garrett, JJ., did not participate in the consideration or decision of this case.

      The petitioner in Gonzalez raised only a state constitutional claim on review. 340 Or. at 455 n 2, 134 P.3d 955. This court accordingly did not decide the Sixth Amendment claim that the Court later decided in Padilla , although it noted that the general rule outside of Oregon was that petitioners could not seek to set aside a guilty plea based on their counsels' failure to advise them of the collateral consequences of their pleas.

      Because petitioner filed his petition for post-conviction relief within two years of the date that Padilla was decided, this case does not require us to decide whether laches or a comparable doctrine might apply if petitioner had waited more than two years after Padilla was decided to file his petition. We express no opinion on that issue.

      We look to Justice Harlan's dissent in Desist both because his reasoning is persuasive and because his reasoning was later adopted in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality).

      The Court recognized the Sixth Amendment right to appointed counsel for indigent criminal defendants in Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the prohibition against coerced confessions in Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It also reversed two other decisions arising in habeas with a cite respectively to Gideon and Jackson . See Linkletter , 381 U.S. at 628 n. 13, 85 S.Ct. 1731.

   Id. at 306, 109 S.Ct. 1060 (quoting Mackey , 401 U.S. at 682-83, 91 S.Ct. 1160 (Harlan, J., concurring in part and dissenting in part)). After noting the different considerations at issue in cases arising on direct appeal and in cases arising on collateral review, Teague concluded that, as a general rule, new federal constitutional rules will not apply retroactively to cases that had become final before the new constitutional rule was announced. Id. at 307-08, 109 S.Ct. 1060. Teague also recognized two exceptions to that "general rule of nonretroactivity": (1) "if [the rule] places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" and (2) if the rule is a "watershed rul[e] of criminal procedure" that "alter[s] our understanding of the bedrock procedural elements" essential to a fair proceeding. 489 U.S. at 307, 311, 109 S.Ct. 1060 (internal quotation marks omitted; emphasis omitted). See Penry v. Lynaugh , 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (adopting the plurality's reasoning in Teague ).

Teague arose in the context of a federal habeas corpus proceeding, and it was unclear initially whether the general rule of nonretroactivity and the two exceptions that Teague announced reflected an interpretation of the federal habeas corpus statutes or the scope of the underlying federal constitutional right. The Court gave partial answers to that question first in Danforth and later in Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

The Court held in Danforth that Teague 's general rule of nonretroactivity reflects the relief available under the federal habeas corpus statutes. 552 U.S. at 282, 128 S.Ct. 1029. In reaching that conclusion, the Court started from the proposition that "the source of a 'new rule' is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule." Id. at 271, 128 S.Ct. 1029. The Court explained:

"What we are actually determining when we assess the 'retroactivity' of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought."

Id.

Building on that proposition, the Court explained in Danforth that, while the federal habeas statute gives federal courts the authority to grant writs of habeas corpus, it "leaves unresolved many important questions about the scope of available relief." Id. at 278, 128 S.Ct. 1029. The Court observed that it "has interpreted that congressional silence-along with the statute's command to dispose of habeas petitions 'as law and justice require'-as an authorization to adjust the scope of the writ in accordance with equitable and prudential considerations." Id. (internal citations omitted). The Court concluded in Danforth that Teague 's general rule of nonretroactivity was "plainly grounded" in that authority, as were the Court's decisions requiring exhaustion of state court remedies and a showing of cause and prejudice before raising an issue in federal habeas that had not been preserved in the state courts. Id.

The Court later held in Montgomery that " Teague 's conclusion establishing the retroactivity of new substantive rules [that come within the first Teague exception] is best understood as resting upon constitutional premises." 136 S.Ct. at 729. The Court reasoned that the concerns that led to Teague 's first exception required, as a matter of federal constitutional law, that new rules that come within that exception be applied retroactively. Id. It followed, the Court held in Montgomery , "that when a new substantive rule of constitutional law [that comes within the first Teague exception] controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule."Id.

Danforth and Montgomery thus identify two classes of new federal constitutional rules. For new constitutional rules that come within the first Teague exception, retroactivity is an inherent part of the right; state courts must give retroactive effect to the right. Montgomery , 136 S.Ct. at 729. Conversely, new constitutional rules that come within Teague 's "general rule of nonretroactivity" permit but do not require retroactive application of the newly recognized right. Danforth , 552 U.S. at 278-79, 128 S.Ct. 1029. The retroactive application of those rules (rules that come within the general rule of nonretroactivity) on state and federal collateral review can be offset by "equitable and prudential considerations," such as finality. Id.

B. State Collateral Challenges

The history of state post-conviction proceedings mirrors in many respects their federal counterpart. The Oregon legislature enacted the post-conviction statute in 1959. Before then, a person convicted of a crime could bring a state writ of habeas corpus to challenge the validity of his or her criminal conviction, although the grounds for doing so were limited initially to jurisdictional challenges. Huffman v. Alexander , 197 Or. 283, 297, 251 P.2d 87 (1952), on recons. , 197 Or. 283, 253 P.2d 289 (1953) (explaining that state habeas initially was limited to jurisdictional challenges). Other common law writs, such as a motion in the nature of coram nobis and a motion to correct the record, were also available in state court before 1959 to challenge the validity of a conviction. See Jack G. Collins and Carl R. Neil, The Oregon Postconviction-Hearing Act , 39 Or. L. Rev. 337, 338 (1960) (listing collateral relief available before the enactment of the 1959 post-conviction act). As Collins and Neil note, the multiplicity of state collateral remedies sometimes proved a trap for the unwary, and the Oregon legislature enacted the 1959 post-conviction act to simplify the procedure for bringing a state collateral challenge to a criminal conviction. Id. at 337-40; see also Bartz , 314 Or. at 362, 839 P.2d 217.

The 1959 state post-conviction act made a petition under the act the exclusive remedy for challenging the lawfulness of a state criminal conviction, and it abolished all common law post-conviction remedies except for the writ of habeas corpus. ORS 138.540(1) ; cf. Penrod/Brown v. Cupp , 283 Or. 21, 24-25, 581 P.2d 934 (1978) (describing the scope of relief available pursuant to a writ of habeas after the enactment of the 1959 post-conviction act). The 1959 act identified four categories of claims for which "[p]ost-conviction relief pursuant to [this act] shall be granted": (a) "[a] substantial denial" of the petitioner's federal and state constitutional rights "which denial rendered the conviction void"; (b) lack of jurisdiction; (c) an unconstitutional or statutorily unauthorized sentence; and (d) a conviction under a statute that is substantively unconstitutional. ORS 138.530(1). The act also supplied a rule for construing its terms. It provided:

"Whenever a person petitions for relief under ORS 138.510 to 138.680, ORS 138.510 to 138.680 shall not be construed to deny relief where such relief would have been available prior to May 26, 1959, under the writ of habeas corpus, nor shall it be construed to affect any powers of executive clemency or pardon provided by law."

ORS 138.530(2). Finally, the act gave trial courts discretion to grant "release, new trial, modification of sentence, and such other relief as may be proper and just." ORS 138.520.

In this case, petitioner relies on ORS 138.530(2) and ORS 138.530(1)(a) to argue that the 1959 legislature intended that every new constitutional rule announced by this court and the United States Supreme Court will apply retroactively in all post-conviction proceedings brought pursuant to the 1959 act. Petitioner focuses initially on ORS 138.530(2), and we begin with that subsection.

1. ORS 138.530(2)

ORS 138.530(2) provides that post-conviction petitions filed pursuant to the 1959 act "shall not be construed to deny relief where such relief would have been available prior to May 26, 1959, under the writ of habeas corpus." In arguing that ORS 138.530(2) requires the retroactive application of all new constitutional rules, petitioner starts from the premise that, before May 26, 1959, federal courts applied new federal constitutional rules retroactively in federal habeas corpus proceedings. Because ORS 138.530(2) provides that the post-conviction act shall not be construed to deny relief "where such relief would have been available prior to May 26, 1959, under the writ of habeas corpus," he concludes that the legislature intended that all new constitutional rules will be applied retroactively in Oregon post-conviction proceedings.

As petitioner recognizes, the rule of construction that ORS 138.530(2) provides turns on the scope of the "relief [that] would have been available prior to May 26, 1959, under the writ of habeas corpus." The relief under the 1959 act should be as broad as the relief that previously was available "under the writ of habeas corpus." However, contrary to the assumption that underlies petitioner's argument, the statutory phrase "writ of habeas corpus" in ORS 138.530(2) refers to the state writ of habeas corpus, not the federal writ. Moreover, before 1959, the Oregon courts had not applied new constitutional rules retroactively. Rather, the issue had not arisen in state habeas. For that reason, no clear pattern of state habeas decisions existed that would permit us to infer that the 1959 legislature intended to codify a requirement that all new constitutional rules be applied retroactively. With that preface, we turn to a more complete discussion of the textual and contextual issues that petitioner's argument raises.

Textually, the phrase "writ of habeas corpus" in ORS 138.530(2) could refer to either the federal writ or the state writ. The legislature did not specify which writ it had in mind. Other sections of the 1959 act, however, refer to either the state statutory writ or the state constitutional writ. ORS 138.540(1) abolished a number of state "common law post-conviction remedies" "[w]ith the exception of habeas corpus." Given the juxtaposition of "habeas corpus" with other state "common law post-conviction remedies," we assume that the phrase, as used in that subsection of the statute, refers to the state writ. Similarly, ORS 138.530(3) provides that the act shall not be construed to limit this court's constitutionally based original jurisdiction in habeas corpus, again using the phrase to refer to a state writ. Finally, section 22 of the 1959 act amended the state habeas statutes to except post-conviction petitions under the 1959 act from the scope of those statutes. See Or. Laws 1959, ch. 636, § 22.

Ordinarily, we assume that the legislature used the phrase "writ of habeas corpus" in ORS 138.530(2) the same way that it used that phrase (or a variation of that phrase) throughout the act-namely, to refer to a state writ of habeas corpus. See Figueroa v. BNSF Railway Co. , 361 Or. 142, 159, 390 P.3d 1019 (2017) (identifying that principle of statutory construction). Moreover, because a statutory post-conviction petition is the exclusive means for challenging the validity of a conviction under the 1959 act, this court has recognized that ORS 138.530(2) reflects the legislature's intent to ensure that the relief available under the new post-conviction act was as broad as that available under the state writ of habeas corpus, which has state constitutional underpinnings. Benson v. Gladden , 242 Or. 132, 136-37, 407 P.2d 634 (1965). We accordingly look to the practice under the state writ of habeas corpus to determine whether, as petitioner argues, ORS 138.530(2) requires that all new constitutional rules be applied retroactively in state post-conviction proceedings.

On that issue, no Oregon Supreme Court decision had held before 1959 that a new constitutional ruling would apply retroactively. Indeed, no Oregon Supreme Court decision had expressly identified that issue before 1959, nor does there appear to have been a practice of sub silentio applying new constitutional rulings retroactively in state habeas. In large part, the absence of any discussion of retroactivity before 1959 derived from the limited grounds on which habeas had been available before the enactment of the post-conviction act. As noted above, state habeas relief traditionally had been available only if the court imposing the conviction had lacked jurisdiction over the person or the subject. Huffman , 197 Or. at 297, 251 P.2d 87. Because those constitutional principles were well-established, they presumably did not raise questions regarding the retroactive application of "new" constitutional rules. At most, the only question that they raised was the application of established principles to analogous circumstances.

To be sure, this court recognized in Huffman in 1952 that state habeas also would lie for "other matter[s] rendering the proceeding void." 197 Or. at 298, 251 P.2d 87 (internal quotation marks omitted; emphasis omitted). However, the court had no occasion in Huffman to address whether the other matters that the petitioner raised in that case, if proved on remand, would announce "new rules" and whether, if they did so, they would apply retroactively. The same is true for the other cases arising before 1959. For all that appears from the cases, this court applied settled rules to the facts of the cases in habeas. See, e.g. , Barber v. Gladden , 210 Or. 46, 57-58, 298 P.2d 986 (1956). Those cases do not yield an instance in which this court clearly applied a new constitutional rule retroactively in state habeas.

Although petitioner does not identify any case in which the state writ of habeas was applied retroactively, even sub silentio , we note that two cases- Cannon v. Gladden , 203 Or. 629, 281 P.2d 233 (1955), and Smallman v. Gladden , 206 Or. 262, 291 P.2d 749 (1956), overruled in part on other grounds , State v. Collis , 243 Or. 222, 413 P.2d 53 (1966) -arguably could be viewed that way. We discuss each case briefly and then explain why we view them differently.

In Cannon , the legislature provided (and Cannon received) a greater sentence for attempted rape than he could have received for the completed crime. 203 Or. at 630-31, 281 P.2d 233. In considering whether Cannon's sentence was constitutionally disproportionate, this court began by noting that the case was "unusual" and that it could not find "any authorities to guide [it] in [its] task." Id. at 631, 281 P.2d 233. However, it decided the question by applying the constitutional rule established 34 years earlier in Sustar v. County Court for Marion Co. , 101 Or. 657, 201 P. 445 (1921) -whether Cannon's sentence was so disproportionate to the offense that it shocked the moral sense of all reasonable people. 203 Or. at 632, 281 P.2d 233. After phrasing the question that way, the court explained that "[t]he question answers itself." Id.

On the one hand, it is possible to read Cannon as announcing a new rule that it applied retroactively (albeit without saying so) to a conviction that had become final. After all, the court noted that it could find no authorities to guide it in its task. On the other hand, it is possible to read Cannon as applying the well-settled rule set out in Sustar to a new factual situation in which the correct application of the rule to the petitioner's sentence could only be described as self-evident. In considering whether Cannon announced a "new" constitutional rule that it applied retroactively, it is helpful to remember that the current federal definition of a "new" constitutional rule set out in Teague in 1989 did not exist either in 1955 when the court decided Cannon or in 1959 when the legislature enacted the post-conviction act. See Desist , 394 U.S. at 263, 89 S.Ct. 1030 (Harlan, J., dissenting) (explaining in 1969 that, before asking whether a rule applies retroactively, "it is necessary to determine whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law"). In our view, Cannon 's holding is better understood as applying the constitutional principles established in Sustar to a new factual situation. As such, its application of Sustar to the sentence before it raised no question of retroactive application of a new rule.

The other decision that could be said to raise an issue of retroactivity is Smallman . Tucked away in the middle of that decision is a discussion of the petitioner's third assignment of error; in that assignment of error, he argued that the statute under which he had been convicted violated the Equal Protection Clause. See 206 Or. at 278-81, 291 P.2d 749. This court noted that "[t]he fact that the ruling contended for might cause a mass hegira from the penitentiary does not foreclose consideration of the issue, but it does argue that the contention should be viewed with profound skepticism." Id. at 279, 291 P.2d 749. This court went on to reject the petitioner's argument on the merits. Id. at 281, 291 P.2d 749.

It is possible to read the court's statement that a ruling in the petitioner's favor "might cause a mass hegira from the penitentiary" as a recognition that a favorable ruling "might" apply retroactively. The court, however, never resolved (and had no need to resolve) whether such a ruling would apply retroactively since it ruled against the petitioner on the merits. It is true that, long after Smallman was decided, the plurality in Teague explained that the question whether a new federal ruling applies retroactively should be resolved as a preliminary matter. See Teague , 489 U.S. at 300-01, 109 S.Ct. 1060. But we cannot conclude from a federal practice announced more than 30 years after Smallman was decided that this court sub silentio concluded that any ruling in the petitioner's favor would apply retroactively.

As we read the state habeas decisions before 1959, they do not expressly address the retroactive application of new constitutional rules, nor do they reveal a clear pattern of retroactive application in state habeas decisions. It follows that we cannot read ORS 138.530(2), as petitioner urges us to do, as codifying a well-accepted practice of requiring that all new constitutional rules will be applied retroactively. Moreover, even if we were to conclude that, before 1959, the Oregon courts had applied some new constitutional rules retroactively in state habeas corpus, it does not follow that the 1959 legislature understood or intended that all new rules would be applied retroactively. After all, some new constitutional rules call for retroactive application in ways that others do not. See generally Mishkin, 79 Harv. L. Rev. at 77-86 (noting that point).

Contrary to petitioner's argument, ORS 138.530(2) does not reflect a legislative choice to require that all new constitutional rules be applied retroactively in state post-conviction proceedings. We also note that, even if we looked to the practice in federal habeas cases, as petitioner argues we should, to interpret the meaning of ORS 138.530(2), the retroactive application of new federal rulings in federal habeas cases before 1963 was "rare." Desist , 394 U.S. at 261, 89 S.Ct. 1030 (Harlan, J., dissenting). More importantly, as noted above, the Court had applied only one new federal constitutional rule retroactively before the Oregon legislature enacted our post-conviction statute in 1959. It follows that we cannot find in either the text of ORS 138.530(2) or the context of that statute a mandate that we apply every new constitutional rule retroactively. Because ORS 138.530(2) does not support the conclusion that petitioner urges us to draw from it, we turn to ORS 138.530(1)(a), the other subsection on which petitioner relies.

2. ORS 138.530(1)(a)

ORS 138.530(1) provides that "[p]ost-conviction relief pursuant to [the 1959 act] shall be granted by the court when one or more of the following grounds is established by the petitioner": (a) "[a] substantial denial in the proceedings resulting in petitioner's conviction" of the petitioner's state or federal constitutional rights which "rendered the conviction void"; (b) a lack of jurisdiction over the subject matter or the person; (c) an unconstitutional or an unauthorized sentence; and (d) a conviction based on a statute that is substantively unconstitutional.

Focusing on ORS 138.530(1)(a), petitioner interprets that subsection as requiring that all new constitutional rules be applied retroactively. Petitioner does not explain why he interprets ORS 138.530(1)(a) that way, and we note two textual problems with his interpretation. Petitioner appears to read the word "when" in the phrase "when one or more of the following grounds is established by the petitioner" as "whenever." To be sure, "when" is broad enough to permit his reading. But his conclusion that ORS 138.530(1)(a) mandates retroactive application of all new constitutional rules would follow more naturally from the text if the legislature had used a different word.

Beyond that, petitioner never explains why the phrase "substantial denial" of his constitutional rights that "rendered the conviction void" is not a problem for his reading of the subsection. Textually, ORS 138.530(1)(a) does not require that post-conviction relief "shall be granted" when any denial of a constitutional right is established. Rather, it provides that relief shall be granted only when a "substantial denial" of a constitutional right rendered the conviction "void." At a minimum, the text of the statute is difficult to square with petitioner's argument that ORS 138.530(1)(a) requires that every new constitutional rule be applied retroactively. In our view, the interpretation of ORS 138.530 (1)(a) that petitioner urges us to adopt does not fit comfort-ably with the text of that subsection.

Another interpretation is textually permissible. ORS 138.530(1) might not be intended to address retroactivity at all. Rather, it could merely identify four grounds for relief for which post-conviction relief shall be granted. Moreover, the phrase "when one or more of the following grounds is established by the petitioner" could have a more modest meaning than the one petitioner attributes to it. It could simply make clear that the burden is on the petitioner to establish the existence of one of the four grounds for which relief shall be granted. Providing that post-conviction relief shall be granted if and when one of those four grounds for relief is established does not necessarily say anything about whether some or all new constitutional rules that come within those four grounds will apply retroactively.

We also consider a statute's context in determining what the text means. Context includes "the preexisting common law and the statutory framework within which the law was enacted." Klamath Irrigation District v. United States , 348 Or. 15, 23, 227 P.3d 1145 (2010) (internal quotation marks omitted). As explained above, retroactive application of new constitutional rules in state habeas proceedings was not an issue when the legislature enacted the post-conviction act in 1959. Moreover, it was not a substantial issue in federal habeas either. Because of procedural limitations on federal habeas corpus, the retroactive application of new federal rulings in federal habeas cases before 1963 was "rare." Desist , 394 U.S. at 261, 89 S.Ct. 1030 (Harlan, J., dissenting).

To be sure, one pair of federal decisions had raised the issue before 1959. In 1956, a plurality of the United States Supreme Court ruled that, if states provided for appeals generally, they could not deny indigent defendants that right by requiring them to pay for a transcript as a condition of taking an appeal. Griffin v. Illinois , 351 U.S. 12, 18-20, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Justice Frankfurter concurred in the judgment. He agreed that, if a state "has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity." Id. at 24, 76 S.Ct. 585 (Frankfurter, J., concurring in the judgment). In agreeing with the plurality, however, he noted that the rule announced in Griffin did not necessarily apply retroactively. He observed that, in future cases, the Court should recognize "candidly the considerations that give prospective content to a new pronouncement of law." Id. 26, 76 S.Ct. 585. He then concluded that "[t]he rule of law announced this day should be delimited as indicated." Id .

Two years later, in 1958, the Court applied Griffin retroactively in a per curiam opinion, which did not mention the issue of retroactivity. See Eskridge , 357 U.S. at 216, 78 S.Ct. 1061. The opinion focused instead on the state's argument that, even though the petitioner in Eskridge had lacked the funds to pay for a transcript, he could have based his direct appeal on "notes compiled by someone other than the official court reporter." See id. at 215-16, 78 S.Ct. 1061. Petitioner has not identified any other United States Supreme Court decision before 1959 applying a new federal constitutional rule retroactively to a case arising on collateral review, and we hesitate to infer from a single decision that the 1959 Oregon Legislature would have intended that all new federal and state constitutional rules would apply retroactively in Oregon post-conviction proceedings.

One final source bears on petitioner's statutory interpretation argument. In State v. Fair , 263 Or. 383, 502 P.2d 1150 (1972), this court recognized that it was not bound to apply all new federal constitutional rules retroactively in post-conviction proceedings. As the court explained in Fair , "we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires." Id. at 387-88, 502 P.2d 1150 ; see Bouge v. Reed , 254 Or. 418, 459 P.2d 869 (1969) ; Haynes v. Cupp , 253 Or. 566, 456 P.2d 490 (1969)overruled on other grounds , State v. Evans , 258 Or. 437, 442, 483 P.2d 1300 (1971). We cannot reconcile the rule that petitioner urges us to draw from Oregon's post-conviction statute (that every new constitutional rule will apply retroactively in post-conviction proceedings) with the rule that Fair announced (that the court may but need not apply some new constitutional rules retroactively).

To be sure, the court in Fair did not state its retroactivity rule after analyzing the text and context of the 1959 statute. But if, as discussed above, the text and context of the 1959 statute do not require the absolute rule that petitioner urges us to find in those sources, then this court's retroactivity decisions, summarized in Fair , provide another contextual clue that ORS 138.530(1)(a) does not require that every new constitutional rule apply retroactively in state post-conviction proceedings.

Considering the text and context of Oregon's post-conviction statute, we hold that ORS 138.530 does not require that all new constitutional rules be applied retroactively. That holding is sufficient to answer the sole retroactivity argument that petitioner has made in his briefs to this court. It follows that we need not decide in this case whether we should clarify or further refine the factors that this court considered in Fair in deciding whether a new constitutional rule will apply retroactively.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

      The act recognized limited exceptions to the general rule that post-conviction proceedings are the exclusive means for challenging the lawfulness of a conviction. ORS 138.540(1).

      In discussing the 1959 act, we cite the statutes codifying the act. The relevant provisions of ORS 138.520, ORS 138.530, and ORS 138.540(1) have remained unchanged since their enactment. Compare Or. Laws 1959, ch. 636, §§ 2-4, with ORS 138.520, ORS 138.530, and 138.540(1).

      After the court issued its decision in Huffman , the state notified this court that the case was moot and that the petitioner's claims should have been raised by way of a motion in coram nobis rather than habeas. The court disagreed with the latter claim but did not vacate its decision. 197 Or. at 331-33, 350, 251 P.2d 87.

      In Barber , for example, the court considered whether a criminal statute was vague in violation of due process, whether a statute that authorized omitting a description of the crime violated due process, whether a punishment was cruel and unusual, and whether lesser sentences for codefendants convicted under a different statute violated equal protection. See id. at 57-58, 309 P.2d 192, 298 P.2d 986. The court found that none of petitioner's various claims had any merit.

      The specific question in Fair was whether a new constitutional rule should be applied retroactively on direct appeal. However, in stating the rule quoted above, the court surveyed and cited its post-conviction decisions. See Fair , 263 Or. at 387 nn. 6 & 7, 502 P.2d 1150. We accordingly conclude that the retroactivity rule that Fair stated applies equally to post-conviction proceedings.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Marcellus Ramon ALLEN, Defendant-Appellant.
    A157614
    Court of Appeals of Oregon.
    Argued and submitted May 17, 2016. February 27, 2019
    Ryan Scott argued the cause and filed the briefs for appellant.
    Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the answering brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General. Also on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

While in custody on a pending murder charge and represented by counsel, defendant solicited a fellow inmate to murder a witness in the pending murder case. As a result of that conduct, defendant was charged with and convicted of two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder. On appeal, defendant contends that the trial court erred in denying his motion for judgment of acquittal on the attempted aggravated murder and conspiracy charges and also erred in denying his motion to suppress evidence that he asserts had been gathered in violation of his right to counsel under Article I, section 11, of the Oregon Constitution. We agree with defendant that the trial court erred in denying the motion for judgment of acquittal on the attempted aggravated murder charges, and we therefore reverse the attempted aggravated murder convictions. We also agree that the trial court erred in denying defendant's suppression motion, and we therefore reverse and remand the conspiracy to commit aggravated murder charge.

Defendant was arrested and indicted for a murder committed in May 2012. He was held in jail pending trial and received appointed counsel. While in jail, defendant offered Ali, a fellow inmate, money to kill a key witness to the murder. Ali reported defendant's offer to detectives who were investigating the May 2012 murder and, at their request, Ali agreed to wear a body wire to record conversations with defendant about the alleged murder for hire. Based on what defendant told Ali, both before and after he began wearing the wire, defendant was charged with, among other offenses, two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder, and the charges were joined with the pending murder charge.

On defendant's motion, the trial court ruled that evidence gathered from the body wire should be excluded under Article I, section 11, from the trial on the murder charge but was admissible on the charges of attempted aggravated murder and conspiracy to commit murder. Defendant was therefore tried separately, and convicted, on the murder charge. Allen , 288 Or. App. at 245, 406 P.3d 89.

Defendant filed a motion for judgment of acquittal on the attempted aggravated murder and conspiracy charges, contending that the evidence would support the conviction of, at best, a solicitation, but not an attempt or a conspiracy to commit murder. The trial court denied defendant's motion and, after a jury trial, defendant was convicted of two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder.

While this case was under advisement, the Supreme Court decided State v. Kimbrough , 364 Or. 66, 431 P.3d 76 (2018), and we allowed supplemental briefing to address the effect of that opinion. Now, based on Kimbrough , defendant assigns error to the court's denial of his motion for judgment of acquittal, and the state concedes the error. We agree that, under Kimbrough , defendant's attempted aggravated murder convictions must be reversed.

In Kimbrough , the court held that an "attempt" occurs when a person intentionally engages in conduct that constitutes a substantial step toward the commission of a crime in which the defendant intends to take part personally. "The defendant's substantial step must be toward the crime that he intends personally to commit, not a crime that will be committed by someone else." Id . at 84, 431 P.3d 76. As the court explained, soliciting another person to commit aggravated murder does not constitute attempted aggravated murder or murder. In reversing the defendant's conviction for attempted aggravated murder and attempted murder, the court held that the evidence showed that the defendant intended the substantive crimes to be committed by someone else and that, although the defendant took steps toward realizing that goal, there was no evidence that the defendant intended personally to engage in conduct that would constitute any elements of the substantive crimes. Id .

The same reasoning requires a reversal of defendant's attempted murder convictions here. Although defendant took a step toward soliciting Ali to commit murder, there is no evidence that defendant intended to personally engage in conduct that would constitute any element of the crime of aggravated murder. Thus, the trial court erred in denying defendant's motion for judgment of acquittal on the aggravated murder charges. We therefore reverse those convictions.

We turn to the motion to suppress. In his opening brief on appeal, defendant contends that the trial court erred in refusing to suppress the body-wire evidence under Article I, section 11, which provides, in part, "[i]n all criminal prosecutions, the accused shall have the right *** to be heard by himself and counsel." We agree with defendant. Subsequent to oral argument, the Supreme Court issued its opinion in State v. Prieto-Rubio , 359 Or. 16, 36-37, 376 P.3d 255 (2016), in which the court held that Article I, section 11, prohibits the interrogation of a suspect about uncharged conduct that is "sufficiently related" to the charged conduct for which the suspect has retained counsel. The court explained in Prieto-Rubio that, in determining whether uncharged conduct is sufficiently related to charged conduct so as to implicate a defendant's Article I, section 11, right to counsel, the court is to examine the facts and circumstances of each case for whether they establish that it was "reasonably foreseeable to a person in the position of the questioner that questioning will elicit incriminating information involving the charged offense for which the defendant has obtained counsel." 359 Or. at 36-37, 376 P.3d 255. The court said that relevant considerations include temporal proximity, location, the nature of the defendant's conduct, and the nature of the investigative process and whether it involves the same personnel. Id.

Also subsequent to oral argument, we decided State v. Savinskiy , 286 Or. App. 232, 238, 399 P.3d 1075, rev. allowed , 362 Or. 208, 407 P.3d 815 (2017), in which we applied Prieto-Rubio and held that suppression of body-wire recordings was required in a context factually similar to this one. There, the defendant, who was being held on various charged crimes, attempted to engage a fellow inmate in a conspiracy to murder individuals whom he believed would implicate him or aid in his conviction of the charged crimes. Id . at 235, 399 P.3d 1075. The inmate informed two detectives who were investigating the charged offenses and agreed to wear a body wire to record conversations with the defendant.

As a result of his communications with the fellow inmate, the defendant was charged with various crimes, and he moved to suppress the body-wire recordings, contending that they had been obtained in violation of his right to counsel under Article I, section 11. The trial court denied the defendant's motion, and we reversed and remanded, citing Prieto-Rubio and concluding:

"[T]he amount of overlapping evidence between these two cases is so substantial that any questioner would have reasonably foreseen that interrogating defendant about his conspiracies would elicit incriminating evidence about his previously charged conduct, because any incriminating evidence that the interrogators obtained relating to the conspiracies would also be incriminating as to defendant's original charges."

Id. at 240, 399 P.3d 1075.

In this case, as in Savinskiy , any evidence that the state might have gathered from Ali's body wire about the conspiracy charge necessarily implicated defendant in the charged murder. The additional fact, as in Savinskiy , that the same detective who had investigated the murder was investigating the uncharged conspiracy to commit murder offense leads to the conclusion that it was reasonably foreseeable that questioning defendant about the uncharged offense would elicit incriminating information involving the charged murder offense. We conclude that the trial court erred in denying defendant's motion to suppress. Convictions for attempted aggravated murder reversed; conviction for conspiracy to commit aggravated murder reversed and remanded.

      Defendant was convicted of the pending murder charge after a jury trial. We reversed his conviction based on the trial court's denial of defendant's motion to suppress evidence and failure to give a jury concurrence instruction on principal or accomplice liability. State v. Allen , 288 Or. App. 244, 245, 406 P.3d 89 (2017).

      We recognize that our consideration of the assignments of error in the supplemental brief is a deviation from our usual practice. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error *** is assigned as error in the opening brief."); State v. Murga , 291 Or. App. 462, 422 P.3d 417 (2018) (an issue raised for the first time in a reply brief will not be considered); Ploplys v. Bryson , 188 Or. App. 49, 57-58, 69 P.3d 1257 (2003) (same). We consider the assignments because they are premised on new Supreme Court authority and because of the grave constitutional implications of upholding convictions that are legally unsupported.

      In Savinskiy , we rejected the state's contention, raised here, that the right to counsel does not apply when the right to counsel on the uncharged conduct has not yet attached. 286 Or. App. at 241-43, 399 P.3d 1075.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Ronald Gary TOTLAND, Defendant-Appellant.
    A160543
    Court of Appeals of Oregon.
    Submitted June 30, 2017. March 20, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
    Before Tookey, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.
   EGAN, C. J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. We write solely to address defendant's first assignment of error: that the trial court erred when it overruled an objection to a statement by the prosecutor during closing arguments. Defendant contends that the statement improperly shifted the burden of proof from the state to defendant. For the reasons below, we affirm.

Burns Police Officer Brewer stopped defendant's vehicle because he saw it cross over the fog line. Brewer told defendant that he had failed to stay within his lane. Defendant, who had two passengers in his car, told Brewer, "We were just bullshitting." Brewer asked defendant for his license, registration, and proof of insurance. Brewer noticed that defendant's speech was slurred and his eyes were red, watery, and bloodshot. Brewer also smelled the odor of alcohol. Brewer asked defendant if he had consumed any alcohol, and defendant said that, earlier that day, he had drank one beer with a cheeseburger. Brewer returned to his vehicle to check defendant's driving status and to call for backup to help conduct a DUII investigation.

Next, Brewer asked defendant to step out of the car. Defendant did, but he stumbled and had to use the bed of the pickup to hold himself up. Brewer could smell a strong odor of alcohol coming from defendant's breath. When Deputy Heatherwick arrived as backup, she saw defendant swaying while he was standing. Brewer asked defendant if he would be willing to perform field sobriety tests. Defendant initially asked why he had to do that, but after Brewer again described the observations he had made and explained that he thought defendant might be too impaired to drive, defendant said, "What do you want me to do?" Brewer understood that as an agreement to do the tests.

Before beginning the tests, defendant told Brewer that he had a bad left knee. Brewer first administered a horizontal gaze nystagmus test. Defendant turned his head contrary to Brewer's instructions and held his breath because Brewer "didn't tell him he could breathe." Ultimately, defendant exhibited six out of six possible signs of impairment on that test. Brewer next began to administer the walk-and-turn test. However, defendant was unable to stay in the instructed position long enough to hear Brewer's instructions and watch a demonstration. Defendant also started the test before he was told to do so, was unable to walk heel-to-toe according to Brewer's directions, and raised his hands more than six inches away from his sides. During the test, defendant stopped and told Brewer that he was "having problems with his left knee" and "didn't think he could do the test on uneven ground." Brewer did not believe the ground was uneven and did not "notice any mounds or pot-holes or anything like that." But defendant said he "didn't feel comfortable taking the test," so Brewer stopped the test before defendant had completed it. Next, Brewer began to administer the one-leg stand, which involves standing on one leg for 30 seconds. Defendant put his foot down within 10 seconds and asked Brewer, "Why don't you just take me in?"

At that point, Brewer asked defendant if he would "be willing to perform a couple of other tests that weren't as physical because of the complaints of his knee"-a counting test and an alphabet test. Defendant completed the tests but made mistakes in both. "Putting everything together," Brewer believed defendant was "too impaired to be operating a vehicle," so he arrested him for DUII and took him to the Harney County Jail. At the jail, Brewer asked defendant to take a breath test and advised him of the consequences for refusing to take the test. Defendant refused to take the test and said, "I had a beer with my cheeseburger. I can't pass the test."

Defendant pleaded guilty to the violation of refusing to take a test for intoxicants, ORS 813.095, and went to trial on the charge of DUII. At trial, Brewer and Heatherwick testified. During closing arguments, the state emphasized that defendant did not complete two of the field sobriety tests. The prosecutor argued:

"He doesn't complete the walk-and-turn. He chooses to not-he chooses to keep that evidence from the jury. He doesn't complete the one-leg stand. He chooses to keep that evidence from the jury."

Defendant objected and asked the trial court to strike the prosecutor's two statements "about [defendant] actively hiding evidence from the jury." Defendant explained:

"I think [the prosecutor is] shifting the burden here. I mean, the defendant is under no obligation whatsoever to produce any evidence at all, and to say that he is trying to hide the ball here I think is an improper argument, and I'd like the jury instructed appropriately."

The trial court overruled defendant's objection, because the court did not think the prosecutor's statements amounted to "a shifting of the burden of proof." A jury subsequently found defendant guilty of DUII.

On appeal, defendant renews the argument he made below. Defendant contends that, in stating that defendant chose to keep evidence from the jury by refusing to complete field sobriety tests, the prosecutor "misstated the law," because those statements shifted the burden of proof to defendant. Furthermore, defendant argues that the prosecution's argument was likely to have affected the jury's verdict, and thus, that the trial court's ruling requires reversal. In response, the state contends that the prosecutor's argument did not improperly shift the burden of proof to defendant and that, even if it did, the trial court's error was harmless. Because we agree with the state's first contention, we do not reach the harmless error argument.

"The law presumes every defendant upon trial charged with crime to be innocent, and it devolves upon the prosecution to prove by evidence to the satisfaction of the trial jury beyond a reasonable doubt, that the defendant committed the crime charged in the indictment." State v. Rosasco , 103 Or. 343, 357, 205 P. 290 (1922). In arguing that the state has met its burden to prove all elements of a crime beyond a reasonable doubt, a prosecutor "may attempt to persuade the jury that it should believe one version of the events and not another." State v. Purrier , 265 Or. App. 618, 620-21, 336 P.3d 574 (2014). However, the prosecutor "must not inappropriately characterize the jury's fact-finding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard or burden of proof." Id. at 621, 336 P.3d 574. For example, a prosecutor cannot "implicitly or explicitly invite the factfinder to consider nonadmitted evidence in aid of the state's case." State v. Spieler , 269 Or. App. 623, 641, 346 P.3d 549 (2015) (internal quotation marks omitted). Nor may a prosecutor, except in rare circumstances, refer to "the defendant's silence or failure to testify[.]" Id. at 641-42, 346 P.3d 549 (noting that only in some trial settings, such as after a defendant's assertion of an affirmative defense, may a prosecutor comment on the defendant's failure to meet a burden of production or persuasion).

We review a trial court's decision to overrule an objection to closing arguments for abuse of discretion. See State v. Logston , 270 Or. App. 296, 303, 347 P.3d 352 (2015) ("[C]ontrol of counsels' arguments is within the discretion of the trial court."); State v. Worth , 231 Or. App. 69, 74, 218 P.3d 166 (2009), rev. den. , 347 Or. 718, 226 P.3d 709 (2010) (standard of review of a trial court's decision to deny a mistrial due to a prosecutor's conduct is abuse of discretion); A trial court's discretion "is not unbounded." State v. Lundbom , 96 Or. App. 458, 461, 773 P.2d 11, rev. den. , 308 Or. 382, 780 P.2d 735 (1989). If "an argument was improper, properly challenged, and likely to prejudice the jury unfairly[,]" upon review, we must reverse. Logston , 270 Or. App. at 303, 347 P.3d 352. However, in conducting this review, we view statements made by a party during argument in context, not in a vacuum. Purrier , 265 Or. App. at 621, 336 P.3d 574.

Defendant contends that the prosecutor's two statements-that defendant "[chose] to keep evidence from the jury" when he failed to complete two nontestimonial field sobriety tests-shifted the burden of proof from the state to defendant and thus "misstated the law." After viewing the statements in context, we conclude that the trial court did not abuse its discretion in overruling defendant's objection to them.

We first note that a defendant's refusal to perform nontestimonial field sobriety tests is admissible, and furthermore, that the state may use such a refusal to prove that the defendant believed the results would be incriminating. See State v. Adame , 261 Or. App. 11, 18-19, 21, 323 P.3d 282, rev. den. , 355 Or. 703, 330 P.3d 629 (2014). In this case, the prosecutor's statements related not to defendant's refusal to perform nontestimonial tests, but to his refusal to complete them. During closing arguments, for the first and only time, the prosecutor characterized that refusal as defendant "choos[ing]" to keep evidence from the jury.

Defendant argues that the prosecutor's comment shifted the burden to defendant to produce evidence of his sobriety. Understood in context, however, the prosecutor's comment did not shift the burden of proof. In context, the comment implied that, in failing to complete the field sobriety tests, defendant was attempting to prevent the creation of evidence to be used against him. That is, the comment attempted to get jurors to make the logical inference, from defendant's failure to complete the field sobriety tests, that defendant believed that results of those tests would be incriminating. In addition, at the beginning of his closing argument, the prosecutor told the jury, "the question that you're to be resolving today is did the [state] prove beyond a reasonable doubt each of [the elements of the crime of DUII]." Furthermore, the court instructed the jury regarding the state's burden of proof four times: at the beginning of voir dire , during voir dire , in the preliminary instructions, and in the final jury instructions. Each time, the court reiterated that the burden is on the state to prove the guilt of the defendant beyond a reasonable doubt. In light of this context, we conclude that the prosecutor's statements did not misstate the law and did not impermissibly shift the burden of proof. Therefore, we hold that the trial court did not abuse its discretion in overruling the defense objection to the prosecutor's statements, and thus, we affirm.

Affirmed.

      ORS 813.010 was amended in 2017, but those amendments are immaterial to the issue on appeal. See Or. Laws 2017, ch. 21, § 80 (2017). Thus, we refer to the current version of the statute in this opinion.

      The principles that the Supreme Court recently discussed in State v. Banks , 364 Or. 332, 342, 434 P.3d 361 (2019), may limit the admissibility of a driver's refusal to perform field sobriety tests in some circumstances. In that case, the court explained that, although "the invocation of a constitutional right cannot be admitted at trial as evidence of a defendant's guilt * * *, no similar bar applies when an officer seeks only a driver's physical cooperation in conducting a constitutionally authorized search." Id. ; see State v. Nagel , 320 Or. 24, 30-33, 880 P.2d 451 (1994) (field sobriety tests are searches for which a warrant is required under Article I, section 9, of the Oregon Constitution ; there is an exception to the warrant requirement for a "search conducted with probable cause and under exigent circumstances"). Here, defendant has not argued that the state's reference to his refusal to complete nontestimonial field sobriety tests was an impermissible comment on his invocation of a constitutional right and we express no opinion on how such an argument would fare on this set of facts.


text:
    Christian JIMENEZ, Plaintiff-Appellant, v. MULTNOMAH COUNTY and Multnomah County Animal Services, Defendants-Respondents.
    Jeffrey Carlson, Plaintiff-Appellant, v. Multnomah County and Multnomah County Animal Services, Defendants-Respondents.
    A163515 (Control) A163516
    Court of Appeals of Oregon.
    Submitted August 29, 2017 March 6, 2019
    Robert E. Babcock, filed the briefs for appellants.
    Jenny M. Madkour and David N. Blankfeld filed the brief for respondents.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   EGAN, C. J.

These two cases, which were consolidated for appeal, require us to interpret provisions of the Multnomah County Code ("MCC") that make it unlawful for a person to "permit" a dog to engage in certain dangerous behavior. MCC § 13.305(B). Plaintiffs were cited with Notices of Infraction ("NOIs") alleging violations of MCC § 13.305(B)(10) and (11). A hearings officer affirmed the NOIs. In both cases, plaintiffs filed petitions for writs of review under ORS 34.040, asserting that the hearings officer improperly construed the law in affirming the NOIs. The trial court dismissed both petitions, affirming the hearings officer's orders. We review the trial court's decision for legal error. ORS 34.040 (trial court must allow writ of review "in all cases in which a substantial interest of a plaintiff has been injured" and an inferior court appears to have "[i]mproperly construed the applicable law"); see also City of Eugene v. Comcast of Oregon II, Inc. , 359 Or. 528, 540, 375 P.3d 446 (2016) (determination of the meaning of municipal ordinances is one of law for the court). As explained below, we affirm.

The relevant facts are brief and undisputed. Chucky, plaintiff Jimenez's dog, was "at large" when he attacked and injured one dog, and when he attacked and killed another dog. Cain, plaintiff Carlson's dog, was "at large" when he ran after a child, knocked him down, and aggressively bit him. Jimenez and Carlson each received NOIs stemming from these incidents. Relevant to this appeal are NOIs they each received alleging violations of section 13.305(B)(10) and (11) of the Multnomah County Code, which provide, in relevant part,

"(B) It is unlawful for any person to commit any of the following:
"* * * * *
"(10) Permit any dog to engage in any of the behaviors described in § 13.401(A) or (B);[ ]
"(11) Permit any dog to engage in any of the behaviors described in § 13.401(C) through (D)[.]"

Plaintiffs timely appealed their NOIs, and each attended a separate hearing before a hearings officer. The hearings officer later summarized the witnesses' testimony. At Jimenez's hearing regarding Chucky, Jimenez stipulated that Chucky was "at large" on the day of the alleged incident. In his testimony at the hearing, Jimenez also stated that his dogs "got out" on that day. Multnomah County Animal Services ("MCAS") Officer Eder testified that shortly after the day of the alleged incident, she went to Jimenez's home five times to inspect Chucky's enclosure, and that each time, it "did not meet the specifications for a secure enclosure/ kennel." After hearing testimony from several additional witnesses, the hearings officer found:

"It is clear from the evidence that Chucky, while at large, attacked and injured [another dog], * * * and therefore engaged in Potentially Dangerous Dog Level 2 behavior as defined in MCC § 13.401(B)."

The hearings officer also found:

"It is clear from the undisputed evidence that Chucky attacked and killed [another dog] * * *. Therefore, I find that the County has proven by a preponderance of the evidence that Chucky, while at large, engaged in Potentially Dangerous Dog Level 4 behavior as defined in MCC § 13.401(D)(1)(b) * * *."

Thus, the hearings officer upheld the NOIs, imposed fines, and suspended Jimenez's ownership of Chucky.

At Carlson's hearing regarding Cain, several witnesses testified. The hearings officer summarized the evidence, and as relevant to the NOI at issue in this case, we recount the following taken from that summary. MCAS Officer Morinville testified that while he was searching for Cain at Carlson's property just after the alleged incident occurred, he "saw a dog jump on a car by the fence and the fence was 'layed down'; therefore the dog had access to the street." Morinville said that "there had been previous reports of dogs loose in the area." Plaintiff Carlson's neighbor also submitted written testimony that "there were many incidents where [Cain and another dog] were out chasing people." Finally, as summarized, plaintiff Carlson testified that he rented the property "from a friend who liked the protective quality" of his dogs and that he lived in a trailer at the back of the property. Carlson described the property as a fenced parking lot with a gate that was secured with a chain bike lock. He said that there was a car located "near the fence" that had dog prints on it, and he described the car as "his dogs' 'stoop.' " Carlson said "[h]e never saw his dogs leave the lot by jumping" from the car over the fence. Carlson admitted that "Cain bit a boy and that Cain was outside of Mr. Carlson's custody and control at the time [of the bite]."

The hearings officer made the following findings:

"It is clear from the evidence Cain was at large[,] * * * ran after [a child], knocked him down and aggressively bit him. Two bystanders had to 'knock the dog off' of [the child]. The evidence, the photos of the injuries, [the child's] crying and saying he was hurt and the statements of the witnesses also support this conclusion.
"* * * * *
"I find that the County has proven beyond a preponderance of the evidence that Cain engaged in Potentially Dangerous Dog Level 4 behavior * * *."

Thus, the hearings officer upheld the NOI. The hearings officer also imposed a fine and suspended Carlson's ownership of Cain.

Plaintiffs each filed a petition in the trial court for a writ of review of the "findings of fact, conclusions, and restrictions" issued by the hearings officer. Plaintiffs also filed briefs in support of their petitions, contending that the hearings officer improperly construed the law in concluding that the infractions had been proven and should be upheld. The trial court entered a general judgment in each case, affirming the hearings officer's determinations regarding the NOIs and dismissing the petitions for writ of review.

On appeal, plaintiffs assert, as they did below, that the hearings officer improperly construed the law and contend that the trial court erred in affirming the hearings officer's decisions. As explained below, although we agree that human conduct is required to establish a violation of the code, we disagree with plaintiffs' assertion that there is no evidence of human conduct in these cases.

We begin our analysis by examining the provisions of the code at issue. The rules that govern the construction of statutes also apply to the construction of local government ordinances, including county code provisions. Comcast , 359 Or. at 540-41, 375 P.3d 446 (applying the rules to municipal ordinances). "We look primarily to the ordinance's text, context, and legislative history, although we may look also to general rules of statutory construction as helpful." Id. (internal brackets and quotation marks omitted). Thus, we set forth the relevant provisions of the Multnomah County Code.

First, MCC § 13.305, the provision under which plaintiffs received their NOIs, provides, in relevant part:

"(A) For the purposes of this section, unless otherwise limited, the owner is ultimately responsible for the behavior of the animal regardless of whether the owner or another member of the owner's household or a household visitor permitted the animal to engage in the behavior that is the subject of the violation.
"(B) It is unlawful for any person to commit any of the following:
"* * * * *
"(10) Permit any dog to engage in any of the behaviors described in § 13.401(A) or (B);
"(11) Permit any dog to engage in any of the behaviors described in § 13.401(C) through (D);
"* * * * *
"(D) Notwithstanding § 13.305(B)(10), (11) and (12), any dog that has been found to have engaged in behaviors as described at §§ 13.401 and 13.402 shall be classified, regardless of whether it is established by preponderance of the evidence that the dog owner, keeper or other person permitted the dog to engage in the behavior . If in any such case it is not established by a preponderance of the evidence that the person cited permitted the dog to engage in the behavior, no fine shall be imposed against that person, but the dog owner or keeper shall be subject to all other restrictions and conditions lawfully imposed by the director or hearings officer pursuant to § 13.404(B) and § 13.509(H) respectively[.]"

(Emphasis added.) Second, MCC § 13.002 provides the following definition:

"PERMIT . For the purpose of § 13.305, shall include human conduct that is intentional, deliberate, careless, inadvertent, or negligent in relationship to an animal."

(Boldface and italics in original.)

To reiterate, plaintiffs contend that, under the plain text of MCC § 13.305(B)(10) and (11), some human conduct by the owner must be proven before the owner may be determined to have violated those provisions. Defendants concede that MCC § 13.305(B) does not provide for strict liability. Nonetheless, defendants contend that MCC § 13.305(B) does not require affirmative action or inaction on the part of the pet owner, because MCC § 13.305(A) provides that "the owner is ultimately responsible" for the behavior of their pets.

We disagree with defendant's reading of the code. Beginning with the text and context of the code, which are the best indications of the code drafters' intent, see Polacek and Polacek , 349 Or. 278, 284, 243 P.3d 1190 (2010), we conclude that plaintiff is correct that the code requires a showing of "human conduct" to establish a code violation. The code explicitly provides that a violation of MCC § 13.305(B) occurs only when an owner "permits" a dog to engage in certain behavior, and that "permit" refers to "human conduct." Furthermore, the code's definition of "permit" contains five specific types of human conduct-ranging from inadvertent to intentional-that subject an owner to liability. The code does not explicitly define "conduct;" therefore, we look to the dictionary for further guidance. See Dept. of Rev. v. Faris , 345 Or. 97, 101, 190 P.3d 364 (2008). Webster's second definition of the noun "conduct" is relevant here:

"2a: the act, manner, or process of carrying out (as a task) or carrying on (as a business, government, or war)."

Webster's Third New Int'l Dictionary 473 (unabridged ed. 2002). Webster's fourth definition of the verb "conduct" is also relevant:

"4: to behave or comport (oneself)."

Webster's at 474.

Those definitions confirm that "human conduct" necessarily involves human behavior or action. Because the code defines the term "permit" by referring to human conduct, the plain text of MCC § 13.305(B)(10) and (11) thus requires that some type of human action or behavior must be present in order to establish a violation.

With that definition and the context of the code provisions in mind, we turn to the statement in MCC § 13.305(A) that pet owners are "ultimately responsible" for the behavior of their animal. That statement does not change the "permit" requirement of MCC § 13.305(B)(10) and (11). Rather, MCC § 13.305(A) expands an owner's liability to cover situations where visitors or household members of the owner "permit" a dog to engage in prohibited behavior. Thus, an owner violates the code if (1) he or she "permits" the dog to engage in prohibited behavior by acting inadvertently, negligently, carelessly, intentionally or deliberately; or (2) a member of the owner's household or household visitor "permits" the behavior. In either case, the code's explicit provision that "permit" refers to "human conduct" remains.

Our conclusion that a human act of "permission" is required to establish a violation under MCC § 13.305(B) (10) and (11) is further supported by MCC § 13.305(D). That section provides for situations where no human has "permitted" a dog's behavior, but a dog has nonetheless engaged in prohibited behavior. In that circumstance, the code provides that the dog may be classified as dangerous, and that restrictions and conditions may be imposed on the owner pursuant to code provisions other than MCC § 13.305(B)(10) and (11). Thus, the code provides explicitly for the circumstance where an owner has not "permitted" a dog to engage in dangerous behavior, yet the dog has done so nonetheless. In that circumstance, the owner may not be penalized under MCC § 13.305(B)(10) or (11), but he or she may face restrictions and conditions imposed under other sections of the code. In sum, MCC § 13.305(B)(10) and (11) require a showing that an owner or other person described in MCC § 13.305(A) permitted the dog to engage in prohibited behavior.

Plaintiffs contend that the hearings officer found no human conduct in this case and that there is "absolutely no evidence demonstrating the requisite human conduct." Specifically, plaintiffs argue there was no evidence that either of them had anything at all to do with or was aware of the animal's "at large" status before the incidents occurred. Therefore, plaintiffs argue that the judgment should be reversed and the NOIs dismissed. We disagree. As we explain below, in these cases, there is evidence to support an inference that plaintiffs did "permit" their dogs' behavior. Therefore, we affirm the judgments.

With regard to plaintiff Jimenez and his dog Chucky, Jimenez did not dispute that Chucky got out of his yard on the day in question. Eder testified that the enclosure was not secure. From that evidence, the hearings officer could reasonably infer that Jimenez "permitted," that is, acted at a minimum inadvertently, in a way that allowed Chucky to engage in dangerous behavior. With regard to plaintiff Carlson and his dog Cain, uncontroverted testimony established that the fence keeping Cain in Carlson's parking lot was "layed down" so that Cain had access to the street. A neighbor testified that Carlson's dogs had gotten out on several previous occasions. Furthermore, Carlson testified that a car was near the fence, that it had paw prints on it, and that the car served as his dogs' "stoop." Carlson also testified that he never personally saw Cain leave the lot by jumping on the car. However, from the factual findings regarding the fence being down, the car being near the fence, and the evidence that the neighbors had reported Cain getting out before, the hearings officer could reasonably infer that Carlson "permitted," that is, acted at a minimum inadvertently, in a way that allowed Cain to engage in dangerous behavior.

Affirmed.

      MCC § 13.002 defines an "animal at large" as one "that is not physically restrained on owner's or keeper's premises including motorized vehicles in a manner that physically prevents the animal from leaving the premises or reaching any public areas; or, is not physically restrained when on public property, or any public area, by a leash, tether or other physical control device not to exceed eight feet in length and under the physical control of a capable person."

      Jimenez challenges only NOI 59161, which alleged a violation of MCC § 13.305(B)(11), and NOI 59162, which alleged a violation of MCC § 13.305(B)(10). Carlson challenges only NOI 59157, which alleged a violation of MCC § 13.305 (B)(11).

      MCC § 13.401(A) and (B) provide:
      "(A) Level 1 behavior is established if a dog at large is found to menace, chase, display threatening or aggressive behavior or otherwise threaten or endanger the safety of any person.
      "(B) Level 2 behavior is established if a dog, while at large, causes physical injury to any domestic animal."

      MCC § 13.401(C) and (D) provide:
      "(C) Level 3 behavior is established if a dog, while confined so as not to be at large, * * * aggressively bites any person.
      "(D) Level 4 behavior is established if:
      "(1) A dog, while at large:
      "(a) Aggressively bites any person; or
      "(b) Kills or causes the death of any domestic animal or livestock; or
      "(2) A dog classified as a Level 3 potentially dangerous dog that repeats the behavior in division (C) of this section after the owner or keeper receives notice of the Level 3 classification."

      In this case, neither party presented legislative history and we are unaware of any that would be helpful.