FILED: May 29, 2002

CALEB RODNEY LAYTON,

Respondent,

v.

GUY HALL,
Superintendent,
Santiam Correctional Institution,

Appellant.

Appeal from Circuit Court, Marion County.

Albin W. Norblad, Judge.

Argued and submitted March 19, 2002.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robert J. McCrea argued the cause for respondent. With him on the brief was McCrea, P.C.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges.

HASELTON, P. J.

Affirmed.

HASELTON, P. J.

Defendant appeals from a judgment granting post-conviction relief. Defendant asserts that the trial court erred in determining that: (1) petitioner's criminal defense counsel breached the standard of constitutionally adequate representation by failing to object that petitioner's sentence violated OAR 213-005-0002(4); and (2) petitioner was prejudiced by that failure because OAR 213-005-0002(4) did, in fact, preclude the imposition of that sentence. We agree with the trial court's conclusions in both respects. Thus, we affirm.

The material facts are undisputed. Petitioner was convicted, following a jury trial, of assault in the third degree based on conduct involving the use of a firearm that occurred in 1995. ORS 163.165(1); ORS 161.610. Assault in the third degree is a Class C felony, ORS 163.165(2); under ORS 161.605(3), the "maximum term of an indeterminate sentence of imprisonment" for a Class C felony is five years. As applied to petitioner's crime, ORS 161.610(4)(a) specified a "gun minimum" prison term of five years imprisonment, regardless of any limitations that ORS 161.605 might otherwise impose.

In February 1997, the circuit court sentenced petitioner to a prison term of five years pursuant to ORS 161.610(4)(a), plus a 24-month term of post-prison supervision (PPS), as provided by the sentencing guidelines (1)--a total sentence of seven years. Petitioner's criminal defense counsel did not object that the sentence violated OAR 213-005-0002(4), which provides:

"The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum indeterminate sentence described in ORS 161.605, the sentencing judge shall first reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum."

Petitioner's criminal defense attorney was, apparently, unaware of that provision at the time of sentencing.

In August 2000, petitioner brought this action, alleging that his criminal defense counsel was constitutionally deficient in that counsel failed to object to the imposition of a sentence totaling seven years as violating OAR 213-005-0002(4). (2) Defendant responded that counsel's failure to object and invoke that provision was not constitutionally deficient, given the construction and application of the previous version of OAR 213-005-0002(4) in State v. Little, 116 Or App 322, 842 P2d 414 (1992). (3) Given Little, defendant asserted, competent counsel could, and would, have reasonably understood that OAR 213-005-0002(4) permitted the imposition of the now-challenged sentence. Alternatively--and regardless of Little--defendant contended that the sentence did, in fact, comport with applicable statutes and rules and, thus, petitioner had not been prejudiced by his attorney's failure to object.

The trial court rejected defendant's arguments and granted relief. The court concluded that counsel was constitutionally inadequate for failing to object to the imposition of a sentence exceeding five years and that petitioner's sentence was, in fact, unlawful under OAR 213-005-0002(4). Consequently, the court amended the judgment of conviction, vacating the 24-month PPS term.

On appeal, defendant reiterates his alternative argument pertaining to the cumulative elements of post-conviction relief, viz., breach of the standard of constitutionally adequate representation and consequent prejudice. See Stevens v. State of Oregon, 322 Or 101, 108-10, 902 P2d 1137 (1995). At the common core of both of those arguments is our construction of OAR 253-05-002(4) in Little.

In Little, the defendant was convicted of first-degree sexual abuse, which was a Class C felony at the time of his conduct. (4) 116 Or App at 324. The defendant's presumptive sentence under the guidelines was 21 to 22 months, but the trial court imposed an upward departure sentence of 36 months' incarceration and 36 months' post-prison supervision--a total of 72 months, exceeding the 60-month maximum for Class C felonies prescribed in ORS 161.605(3). Id. The defendant appealed, arguing that his sentence was unlawful under OAR 253-05-002(4). At that time, the rule provided:

"The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum sentence, the sentencing judge shall reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum."

We affirmed. The premise of our holding was that OAR 253-05-002(4) applied only to circumstances in which the court imposed a presumptive guidelines sentence, and did not apply to the imposition of departure sentences. We began by summarizing the state's position:

"The state agrees that the first sentence of the rule appears to require that the combined prison and post-prison term not exceed the maximum of ORS 161.605(3). However, it argues that, when the two sentences are read together and applied to the grid block, the rule does not make sense, unless it is held to apply only in those cases in which the court imposes the presumptive sentence.

"* * * * *

"The state's position is that, in the light of the legislative understanding of the nature of indeterminate sentences reflected in the changes to ORS 137.120, it is reasonable to conclude that the maximum terms of ORS 161.605 no longer have general application.

"The gravamen of the state's position is that, if ORS 161.605(3) applies generally to OAR 253-05-002(4), the rule is not in harmony with other guidelines legislation." Little, 116 Or App at 324-26. (Footnote omitted.)

We agreed. We noted that "[w]hether an upward departure sentence may exceed the statutory maximum in ORS 161.605 is not expressly answered in the rules or statutes"; however, "nowhere in the 136 sections of the [guidelines] implementing acts did the legislature specifically make the maximums established in ORS 161.605 generally applicable to sentences imposed under the guidelines." 116 Or App at 324, 325 (emphasis in original). We further emphasized the ostensible anomalies that we perceived would result from the defendant's proposed construction and application of OAR 253-05-002(4):

"Under [the rule], if the terms of prison and post-prison supervision exceed the statutory maximum, then the post-prison term must be reduced. That requirement makes sense for presumptive terms. There is no grid block under which a presumptive prison term by itself could exceed the statutory maximum. However, there are several grid blocks under which a presumptive prison term, when combined with the mandatory term of post-prison supervision that must be imposed under OAR 253-05-002(2), exceeds the statutory maximum. * * *

"If OAR 253-05-002(4) applies in those instances, the sentencing court, no matter how aggravating the circumstances, would have to impose less than the maximum upward departure term, or the offenders would not serve a term of post-prison supervision.

"* * * * *

"Holding that the rules provide that the maximum term for upward departures and that OAR 253-05-002(4) applies only to presumptive sentences is consistent with the principles of the guidelines and harmonious with the other guidelines rules and statutes." 116 Or App at 326-28.

We decided Little in 1992. Petitioner was sentenced in 1997. In the interim, two related events occurred that bear on our assessment of whether constitutionally competent counsel would have objected to the imposition of a sentence exceeding five years. First, in 1993, the legislature (5) amended OAR 253-05-002(4) to read, as it currently does:

"The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum indeterminate sentence described in ORS 161.605 the sentencing judge shall first reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum." Or Laws 1993, ch 692,