FILED: November 8, 2000

KEITH H. REYNOLDS,

Respondent,

v.

ROBERT LAMPERT,
Superintendent,
Snake River Correctional Institution,

Appellant.

Appeal from Circuit Court, Malheur County.

J. Burdette Pratt, Judge.

Argued and submitted September 7, 2000.

Kathleen Cegla, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kaye E. McDonald, Assistant Attorney General.

Eric M. Cumfer argued the cause and filed the brief for respondent.

Before Landau, Presiding Judge, and Deits, Chief Judge,* and Brewer, Judge.

BREWER, J.

Affirmed.

*Deits, C. J., vice Linder, J.

BREWER, J.

The state appeals from a judgment granting post-conviction relief to petitioner based on inadequate assistance of counsel. Petitioner cross-assigns error to the court's imposition of attorney fees. We review for errors of law, ORS 138.220, and affirm.

The relevant facts are undisputed. In May 1992, petitioner was convicted of federal bank robbery and was sentenced to a term of imprisonment for that offense. In July 1992, while serving his federal sentence, petitioner pleaded guilty to first-degree kidnapping and first-degree robbery. ORS 163.225; ORS 164.415. The sentencing court treated the bank robbery conviction as a person felony in classifying petitioner's criminal history. That decision resulted in a criminal history score of D, instead of G, for petitioner's state court convictions. The court sentenced petitioner to concurrent sentence, totaling 216 months, based on that classification.

In 1995, petitioner filed a petition for post-conviction relief from his state court convictions, alleging numerous specifications of trial court error and inadequate assistance of counsel. In 1997, petitioner filed a supplemental petition that included the following claims:

"Petitioner was denied adequate assistance of counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States and under Article I, Section 11 of the Constitution of Oregon in [that] defense counsel failed to:

"(A) Investigate and correct the PSI concerning prior crimes alleged as 'person felonies' and 'felonies';

"(B) Inform himself regarding the client's prior convictions[.]"

At trial, petitioner argued that the sentencing court should not have treated the bank robbery conviction as a person felony in classifying his criminal history. Petitioner's primary argument was that federal bank robbery was not a person felony listed in the sentencing guidelines and, thus, could not be treated as such in classifying his current convictions. The court agreed with the state that former OAR 253-04-011 governed the effect of the federal conviction on petitioner's criminal history score. (1) That rule provided, in part, that "[a]n out-of-state adult conviction shall be used to classify the offender's criminal history if the elements of the offense would have constituted a felony or Class A misdemeanor under current Oregon law." Former OAR 253-03-001(14) defined "person felonies" by reference to 39 statutes setting forth the elements of separate criminal offenses.

The court noted that the crime of federal bank robbery is committed under 18 USC