OR: Global plea agreement to dispose of 40 charges from a crime spree wasn’t IAC where no motions to suppress were shown plausible and plea clearly favored defendant

After becoming addicted to opiods for treatment from a injury, defendant went on a crime spree committing over 40 offenses. His attorney worked out a favorable global resolution of the case. Once in the pen, with buyer’s remorse, defendant decided to challenge the effectiveness of defense counsel. He challenged 11 different searches. One of his challenges was to one police department’s inventory policy that didn’t become law until after the plea. It wasn’t clear to anyone, let alone defense counsel, that any of the motions to suppress would have been meritorious. Moreover, the plea worked out was all clearly to defendant’s benefit, and pursuing any motion to suppress prior to plea negotiations might well have made his favorable plea agreement impossible. Owen v. Taylor, 287 Ore. App. 639, 2017 Ore. App. LEXIS 1042 (Sept. 7, 2017):

On the second point, there is not much in this record to suggest that a lawyer in trial counsel’s position would have reason to think that the motions to suppress ultimately would have been successful in any significant way. To be sure, the police reports indicate potential grounds for suppression of the evidence that may have been worth pursuing if the case went to trial in order to narrow the state’s case against petitioner. However, the police reports also contain facts that would suggest to counsel that such motions, ultimately, would not succeed. In any event, nothing in the police reports clearly establishes that the various warrantless searches were without adequate constitutional justification, and the reports indicate a number of potentially applicable justifications for the searches. In hindsight, petitioner’s greatest chance for suppression may have been of the evidence obtained in inventory searches under the Lane County Sheriff’s policy that we determined was invalid two years after petitioner entered his plea. But as the post-conviction court correctly observed, at the time of petitioner’s plea, those cases had not been decided and, as those two cases themselves indicate, Lane County judges were rejecting such challenges. Thus, at the time of petitioner’s plea, counsel was not unreasonable to think that such a motion ultimately would not succeed as counsel evaluated whether to file a motion to suppress in advance of any plea negotiations.

Apart from being of questionable benefit to petitioner, pursuing such motions carried significant risks for petitioner. It would be apparent to a reasonable lawyer that engaging in the motions practice now contemplated by petitioner would have thwarted petitioner’s attempts to work out a plea deal that minimized his sentencing exposure and his exposure to additional charges. Had trial counsel filed such motions, there is little reason to think that the prosecutor would have been amenable to negotiating the case in the same way. Instead, the prosecutor likely would have brought additional charges against petitioner to strengthen the state’s case and would have added additional aggravating sentencing factors. That expansion of the case would increase petitioner’s sentencing exposure significantly, something that petitioner wanted to avoid. Under those circumstances, as the post-conviction court correctly concluded, counsel reasonably opted not to pursue the motions to suppress that petitioner alleges should have been pursued.

Another example of “watch out what you ask for.” Do you really want to set aside all these pleas and risk 250 years? What if the prosecutor agrees to set aside the pleas and take them all to trial?