dissenting.
In State v. Allison, 143 Or App 241, 923 P2d 1224, rev den, 324 Or 487 (1996), the Court of Appeals held that ORS 137.635,1 the so-called “Denny Smith” sentencing law, *502applied only to a defendant who had been convicted of one of the crimes listed in the statute before the defendant committed the crime for which he or she was to be sentenced under that statute. Id. at 247-56.2 Under Allison, because petitioner committed his crimes before his first conviction, he was not subject to ORS 137.635 (1993) for any of the crimes for which he eventually was sentenced.
At the time that petitioner was sentenced, ORS 137.635 (1993) had not been interpreted by an appellate court. The state requested that the trial court sentence petitioner under ORS 137.635 (1993). Petitioner’s lawyer did not object to the state’s request and did not argue to the trial court that the statute did not apply to petitioner. In the absence of any claim to the contrary, the trial court sentenced petitioner under ORS 137.635 (1993), thereby substantially increasing the length of petitioner’s prison term.3
Petitioner later sought post-conviction relief, arguing that his ORS 137.635 (1993) sentences were illegal in light of the Court of Appeals’ holding in Allison and that his trial lawyer had been constitutionally inadequate in failing to advance the interpretation of the statute that the Allison court later accepted. The post-conviction court denied petitioner post-conviction relief. The Court of Appeals, however, agreed with petitioner, reversed the post-conviction court, and ordered the entry of judgment granting petitioner post-conviction relief.
This court allowed review. Now a majority of this court refuses to grant petitioner relief from the illegal *503sentences imposed by the trial court. Because the majority’s determination that petitioner received constitutionally adequate counsel is completely at odds with this court’s constitutional standard for adequate counsel and because that determination misunderstands the obligations of a criminal defense lawyer in our adversarial system, I respectfully dissent.
It is difficult to determine the principal elements of the majority’s decision to reject petitioner’s claim that he was denied constitutionally adequate counsel. However, it appears that the heart of the majority’s reasoning is found in the following passage:
“The Court of Appeals and petitioner both incorrectly assume that, because a court eventually recognized a statute’s ambiguity, any lawyer exercising reasonable professional skill and judgment would have done the same. But issues do not recognize themselves; the task of identifying and evaluating potential issues rests on the skills of the lawyer. Although that is a skill, the Court of Appeals’ majority nevertheless failed to apply the ‘reasonable professional skill and judgment’ test to its exercise. The correct rule remains as this court described it previously, with the caution that it must be applied to all aspects of a lawyer’s reasoning process, not just to selected parts. In situations similar to this one, the post-conviction court may grant a petitioner relief only if it can say affirmatively that a lawyer exercising reasonable . professional skill and judgment would have recognized the statutory ambiguity, would have seen an interpretation that could benefit the defendant, and would have concluded under the circumstances that the potential benefits of advancing that interpretation exceeded any risks.
“This case fails at the first step. Assuming that ORS 137.635 is ambiguous, it is not so obviously ambiguous that any lawyer exercising reasonable professional skill and judgment necessarily would have seen it.
“As noted, we look at the statute as a lawyer would have seen it at the time. ORS 137.635 applies ‘[w]hen, in the case of a felony described in subsection (2) of this section, a court sentences a convicted defendant who has previously been convicted of any felony designated in subjection (2) of this *504section * * *.’ At sentencing, a lawyer asking whether petitioner fell within the meaning of the statute would first note, as the Court of Appeals did, that ‘convicted’ means ‘found guilty.’ The lawyer would then consider the remaining criteria. Is petitioner being sentenced for ‘a felony described in subsection (2) of this section’? Yes, in all three cases. ‘Has’ petitioner ‘previously been [found guilty] of a qualifying felony? Again, yes, in all three cases. Petitioner was found guilty in cases two and three before being sentenced in case one; he was found guilty in cases one and three before being sentenced in case two; and he was found guilty in cases one and two before being sentenced in case three. The statute, then, would appear to apply to every qualifying felony in all three cases. Among the many statutes implicated in a criminal sentencing, nothing makes this statute stand out as being ambiguous.”
338 Or at 497-98 (2005) (emphasis in original; footnotes omitted).
The majority’s conclusion appears to proceed from the premise that a reasonable lawyer would not have recognized any ambiguity in ORS 137.635 (1993) that, if resolved in petitioner’s favor, would have benefitted petitioner. That premise is false.
The opening clause of ORS 137.635(1) (1993) provides:
“(1) When, in the case of a felony described in subsection (2) of this section, a court sentences a convicted defendant who has previously been convicted of any felony designated in subsection (2) of this section, the sentence shall not be an indeterminate sentence * *
Subsection (2) of the statute lists the “[felonies to which subsection (1) of this section apply * * *.”
The phrase in subsection (1) of ORS 137.635 (1993), “previously been convicted,” signals that the court’s duty to apply the statute arises when the court sentences a defendant who is convicted of a listed felony and the defendant is a person who “previously” was convicted of a listed felony. However, the term “previously” gives rise to a critical interpretive issue. The statute fails to identify with reasonable *505clarity the point in time when the characteristic of a previous conviction must apply with respect to the defendant.
As the majority opinion in Allison demonstrated, there are three possible answers to that conundrum: the previous conviction must precede either (1) the time of the sentencing proceeding for the current felony crime of conviction; (2) the time of the conviction for the current felony crime of conviction; or (3) the time of the commission of the current felony crime of conviction. 143 Or App at 247-48. The last of those possible answers is the interpretation that the Court of Appeals majority adopted in Allison, after rejecting the other two as impractical and contrary to the statute’s purpose. Id. at 255-56. The parties assume, as we must for the purpose of analyzing this case, that the Court of Appeals in Allison correctly interpreted ORS 137.635 (1993). Yet, according to the majority, the words of the statute plausibly support only the first, or perhaps the first and second, possible answers listed above, each of which the Court of Appeals demonstrated in Allison was unworkable and inconsistent with the legislature’s intent. Moreover, according to the majority, the statutory text not only fails to support the interpretation that the Court of Appeals adopted in Allison, but it fails to give even a hint that the court’s interpretation represented one plausible reading of the statute. The majority’s view is wrong, because the majority analyzes the. statute incompletely.
The majority fails to examine an important textual clue that contradicts its reading of the statute: The phrase “previously been convicted” in ORS 137.635(1) (1993) states a criterion that modifies the term “convicted defendant.” One reasonable reading of the statute, as Allison demonstrated, is that the statute applies to only a defendant who satisfied the previous-conviction criterion when the defendant committed the crime of conviction, i.e., “in the case of a felony described in subsection (2) of this section!.]” The majority fails to acknowledge that ORS 137.635 (1993) is subject to that reasonable alternative interpretation and that a competent lawyer would have detected it. That interpretation, if properly applied by the trial court in petitioner’s criminal sentencing proceeding, would have rendered ORS 137.635 (1993) inapplicable to that proceeding, resulting in a substantially shorter prison term for petitioner. Any competent *506lawyer would have advocated that reasonable reading of the statute and objected to the application of ORS 137.635 (1993) in petitioner’s sentencing proceeding.
With respect, the majority appears not to comprehend the difference between tactical matters, for which criminal defense lawyers are accorded great leeway, and the issue presented here. There was no tactical choice to be made by petitioner’s lawyer. Instead, at sentencing, the lawyer’s duty was to argue that, properly interpreted, ORS 137.165 (1993) did not apply to petitioner’s proceeding.
The American Bar Association has advanced standards to measure the criminal defense function:
“Counsel for the accused is an essential component of the administration of criminal justice. * * * The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation.”
ABA Standards for Criminal Justice Prosecution Function and Defense Function, Standard 4-1.2 (3d ed 1993) (emphasis added). In particular, at sentencing, “[d]efense counsel should present to the court any ground which will assist in rendering a proper disposition favorable to the accused.” Standard 4-8.1. Accepting the state’s interpretation of an obviously ambiguous sentencing statute, in the absence of appellate guidance supporting the state’s reading of the statute, is inconsistent with the above-described professional standard.
Article I, section 11, of the Oregon Constitution provides that, “[i]n all criminal prosecutions, the accused shall have the right to be heard by himself and counsel [.]” Similarly, the Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” To fulfill the role assigned to defense counsel under our adversarial system of criminal justice, a lawyer must investigate the facts and inform himself or herself with respect to the law “to the extent appropriate to the nature and complexity of the case[.]” Krummacher v. Gierloff, 290 Or 867, 875, 627 P2d 458 (1981).
*507In my view, a lawyer in a case like this who was attempting to meet the standards outlined in Krummacher necessarily would have reviewed the wording of ORS 137.635 (1993) to determine how that statute affected his or her client. And, that lawyer certainly should have recognized that a reading of the statute could have resulted in the sentence that this particular defendant ultimately received. However, I reject the majority’s assertion that a constitutionally adequate lawyer also would not have recognized that another permissible reading of the statute existed, precisely along the lines eventually adopted in Allison, i.e., reading the phrase “previously been convicted” in a way that would have excluded this client. And, I doubt that any member of this court would deny that, once the lawyer saw the alternative reading, the lawyer was obliged to argue it.
The majority purports to accept the interpretation of ORS 137.635 (1993) set out in Allison. Under that interpretation, petitioner’s sentences are excessive by at least four years. The trial lawyer’s failure to take the minimum steps necessary to protect petitioner from the unlawful imposition of those extra years in prison was not constitutionally adequate representation. The prejudice to petitioner is obvious and is extreme.
For the foregoing reasons, I respectfully dissent.
Durham, J., joins this dissent.As footnote one of the majority opinion notes, ORS 137.635 has been amended twice since 1993.1 agree with the majority that those amendments do not affect the analysis in this case. For purposes of consistency, we cite here the text of ORS 137.635 (1993). That statute provided:
“(1) When, in the case of a felony described in subsection (2) of this section, a court sentences a convicted defendant who has previously been convicted of any felony designated in subsection (2) of this section, the sentence shall not be an indeterminate sentence to which the defendant otherwise would be subject under ORS 137.120, but, unless it imposes a death penalty under ORS 163.105, the court shall impose a determinate sentence, the length of which the court shall determine, to the custody of the Department of Corrections. Any mandatory minimum sentence otherwise provided by law shall apply. The sentence shall not exceed the maximum sentence otherwise provided by law in such cases. The convicted defendant who is subject to this section shall not be eligible for probation. The convicted defendant shall serve the entire sentence imposed by the court and shall not, during the service of such a sentence, be eligible for parole or any form of temporary leave from custody. The person shall not be eligible for any reduction in sentence pursuant to ORS 421.120.
“(2) Felonies to which subsection (1) of this section apply include and are limited to:
“(a) Murder, as defined in ORS 163.115, and any aggravated form thereof.
“(b) Manslaughter in the first degree, as defined in ORS 163.118.
“(c) Assault in the first degree, as defined in ORS 163.185.
“(d) Kidnapping in the first degree, as defined in ORS 163.235.
“(e) Rape in the first degree, as defined in ORS 163.375.
“(f) Sodomy in the first degree, as defined in ORS 163.405.
“(g) Unlawful sexual penetration in the first degree, as defined in ORS 163.411.
“(h) Burglary in the first degree, as defined in ORS 164.225.
“(i) Arson in the first degree, as defined in ORS 164.325.
“(j) Robbery in the first degree, as defined in ORS 164.415.
“(3) When the court imposes a sentence under this section, the court shall indicate in the judgment that the defendant is subject to this section.”
This court has not reviewed the merits of the Allison decision. However, the state does not assert in this court that the rule of law announced in Allison is legally incorrect.
It is difficult to determine on this record exactly the increased prison term that petitioner received under ORS 137.635 (1993). At a minimum, it appears that petitioner will serve an additional four years in prison as a result of the erroneous application of ORS 137.635 (1993). The impact on the length of petitioner’s incarceration may in fact be much greater. That is so because a person sentenced under ORS 137.635 (1993) “shall serve the entire sentence imposed by the court and shall not, during the service of such sentence, be eligible for * * * any reduction in sentence pursuant to ORS 421.120 or for any reduction in term of incarceration pursuant to ORS 421.121.” ORS 421.120 and ORS 421.121 authorize prison term reductions for commendable institutional conduct, and various work and educational activities in prison.