No. 32 January 24, 2024 229
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
RICO CARLOS NEWMANN,
Petitioner-Appellant,
v.
Josh HIGHBERGER,
Superintendent,
Oregon State Correctional Institution,
Defendant-Respondent.
Marion County Circuit Court
20CV07571; A178839
Patricia A. Sullivan, Senior Judge.
Submitted October 31, 2023.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant. Rico Carlos Newman filed the supple-
mental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Tookey, Judge, and
Kamins, Judge.
LAGESEN, C. J.
Affirmed.
230 Newmann v. Highberger
Cite as 330 Or App 229 (2024) 231
LAGESEN, C. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from convictions resulting from
no-contest pleas that he entered in 2012. In his brief sub-
mitted through counsel, petitioner assigns four errors to
the post-conviction court’s judgment; petitioner also filed a
pro se supplemental brief in which he raises two assign-
ments of error. In the first assignment of error in each brief,
petitioner contends that the post-conviction court erred in
denying his motion under Church v. Gladden, 244 Or 308,
311-12, 417 P2d 992 (1966). In the second assignment of
error in each brief, petitioner contends the post-conviction
court erred in denying relief on his claim alleging that his
trial counsel was constitutionally inadequate for failing
to ensure that his pleas were “knowing.” In the third and
fourth assignments of error, petitioner, through counsel,
argues the post-conviction court erred in denying relief on
his claims alleging that his no-contest pleas violated his
federal due process and equal protection rights, respec-
tively. We review the post-conviction court’s judgment for
legal error and accept the court’s supported implicit and
explicit factual findings. Green v. Franke, 357 Or 301, 312,
350 P3d 188 (2015). Reviewing under that standard, we
affirm.
The relevant facts are as follows. In 2012, petitioner
pleaded no contest to 12 counts of criminal conduct arising
from a drug-related armed robbery. See State v. Newmann,
278 Or App 675, 677-78, 375 P3d 551 (2016) (setting forth
facts of underlying criminal proceeding). Two of those
counts were for second-degree assault with a firearm based
on petitioner, while armed with a gun, pushing the victim,
and causing her physical injury. Id.
At the plea hearing, in response to the trial
court’s questions, petitioner stated that he understood the
no-contest pleas, understood he was waiving his right to a
jury trial, and understood the maximum sentence for each
count. The court determined that petitioner’s no-contest
pleas were made freely, voluntarily, and intelligently, and
sentenced petitioner to 300 months’ incarceration.
232 Newmann v. Highberger
In 2021, petitioner initiated this post-conviction
proceeding. In a petition filed through counsel, he asserted,
among other things, that his trial counsel was inadequate
and ineffective for several reasons, that his no-contest pleas
were not valid in light of Ramos v. Louisiana, 590 US ___,
140 S Ct 1390, 206 L Ed 2d 583 (2020), and that his federal
due process and equal protection rights were violated as a
result of those allegedly invalid pleas. Petitioner, pro se, later
filed a Church motion1 seeking a court order instructing his
post-conviction counsel to raise a claim for relief that peti-
tioner wanted to raise, but that counsel refused to assert, or
for substitution of post-conviction counsel.
The post-conviction court held a hearing on peti-
tioner’s Church motion and gave petitioner an opportunity
to explain the claim that he wanted to add to the petition.
Petitioner told the court that he was no longer seeking sub-
stitution of his post-conviction counsel because the two had
“come to a meeting of the minds” and that counsel would
continue to represent him to pursue the claims counsel
determined were “the most meritorious.” Petitioner then
explained that the one claim he wanted to raise but that
counsel refused to bring was a claim asserting a violation of
his right to a “fast and speedy” trial.
The court then asked counsel to explain his decision
not to raise the fast and speedy trial right claim. Counsel
explained that he could not ethically bring the claim under
the Rules of Professional Conduct. The post-conviction court
denied petitioner’s Church motion because it agreed that
counsel could not ethically bring the claim. The then court
denied petitioner’s petition for post-conviction relief in a
written order. Petitioner appealed.
1
The purpose of a Church motion is “to inform the post-conviction court that
petitioner’s counsel has failed to assert a ground for relief and to ask the court
either to replace counsel or to instruct counsel to assert the ground for relief.”
Bogle v. State of Oregon, 363 Or 455, 472, 423 P3d 715 (2018). “[A] petitioner must
show that counsel has failed to raise a ground for relief and, in doing so, has
failed to exercise reasonable professional skill and judgment.” Id. at 473. In turn,
“a post-conviction court presented with a proper Church motion should review
the motion and give the petitioner a reasonable opportunity to establish the basis
for replacement or instruction of the petitioner’s current counsel.” Id. at 474. The
court may also consider “all the other known circumstances” in the case and the
court’s own “observations of the performance of counsel” in ruling on a Church
motion. Id. (internal citation and quotation marks omitted).
Cite as 330 Or App 229 (2024) 233
First Assignment of Error. Petitioner, through coun-
sel and pro se, first contends that the post-conviction court
erred in denying his Church motion. In petitioner’s view,
the fact that the post-conviction court asked post-conviction
counsel why he was not raising certain claims and then
considered post-conviction counsel’s response demonstrates
that the court applied the incorrect legal standard in deny-
ing petitioner’s Church motion. He argues that, under Lopez
v. Nooth, 287 Or App 731, 403 Pd 848 (2017), the post-
conviction court should not have done either.
Petitioner’s argument is unpreserved because he
did not raise the issue to the post-conviction court, although
he had the opportunity to do so. In particular, he never
argued to the post-conviction court that counsel’s responses
were beyond that permitted under Bogle v. State of Oregon,
363 Or 455, 474, 423 P3d 715 (2018), and never argued
that counsel’s responses were otherwise improperly oppo-
sitional under Lopez. Thus, petitioner did not present the
post-conviction court with an opportunity to respond to the
claims he now raises on appeal. “[A]s a general rule, argu-
ments not made to the post-conviction court in support of a
claim will not be considered on appeal.” Pohlman v. Cain,
312 Or App 676, 680, 493 P3d 1095, rev den, 368 Or 787
(2021) (the petitioner did not preserve the argument that the
post-conviction court misunderstood the legal standard to
assess Church motions because the petitioner did not raise
that issue to the court). As we have in cases with similar
facts, we reject petitioner’s claim of Church error for that
reason. Pohlman, 312 Or App at 680-81; Chrisco v. Blewett,
313 Or App 622, 623, 491 P3d 832 (2021), rev den, 369 Or
211 (2022); Bacon v. Cain, 327 Or App 673, 679, 536 P3d
634 (2023) (rejecting as unpreserved the petitioner’s Church
argument and reversing on separate grounds).
Second Assignment of Error. In his second coun-
seled and pro se assignment of error, petitioner contends
that the post-conviction court erred in denying his claim for
relief asserting that his trial counsel was in adequate and
ineffective under the state and federal constitutions for fail-
ing ensure that his pleas were “knowing.” Petitioner asserts
that trial counsel failed to advise him that the two assault
234 Newmann v. Highberger
charges did not have a factual basis, an omission that, in
petitioner’s view, means that his pleas were not knowing.
Specifically, petitioner argues that the evidence was insuf-
ficient to show that he caused the victim physical injury.
Petitioner further argues that he would not have entered
the no-contest pleas had he known that the assault charges
lacked factual bases.
As noted, petitioner’s claims arise under both the
state and federal constitutions. The standards for assess-
ing those claims under both constitutions are “functionally
equivalent.” Johnson v. Premo, 361 Or 688, 699, 399 P3d
431 (2017) (internal citations and quotation marks omitted).
First, under the state constitution, a petitioner must show
that trial counsel “failed to exercise reasonable professional
skill and judgment,” and under the federal constitution, that
“counsel’s performance fell below an objective standard of
reasonableness.” Smith v. Kelly, 318 Or App 567, 568-69, 508
P3d 77 (2022), rev den, 370 Or 822 (2023). Second, under
both constitutions, a petitioner must show that counsel’s
inadequate performance caused prejudice. Id. at 568.
In this case, we need not address the question of
whether counsel’s performance was deficient because the
record supports the post-conviction court’s determination
that petitioner did not demonstrate that he was prejudiced
by any deficiency in counsel’s advice. To demonstrate preju-
dice under the circumstances of this case, petitioner would
have to have shown that he would have decided against
pleading no contest to the criminal charges and would have
instead chosen to go to trial had trial counsel performed
adequately. Martin v. Kelly, 328 Or App 98, 107, 537 P3d 200
(2023). Here, the post-conviction court found that petitioner
was not credible in his declaration that he would have gone
to trial on the two assault charges had he known about the
alleged lack of factual bases for them. The post-conviction
court’s finding on petitioner’s credibility binds us on appeal
and precludes the conclusion that petitioner was prejudiced
by the alleged deficiency in counsel’s advice. See Blain v.
Cain, 327 Or App 584, 588, 536 P3d 623 (2023) (absent cred-
ible evidence that the petitioner would have rejected a plea
offer and proceeded to trial but for counsel’s deficient advice,
Cite as 330 Or App 229 (2024) 235
the petitioner failed to establish prejudice); see also State v.
Johnson, 335 Or 511, 523, 73 P3d 282 (2003) (appellate court
bound by factfinding court’s “finding that a party’s evidence
is not sufficiently persuasive” (internal quotation marks
omitted)).
Third Assignment of Error. In his third assignment
of error, petitioner contends that the post-conviction court
erred in denying relief on his standalone due process claim.
Citing Ramos, 140 S Ct 1390, petitioner argues that his
pleas violated federal due process, in view of the Supreme
Court’s subsequent decision that Oregon’s allowance of
nonunanimous jury verdicts violated the Sixth Amendment
to the United States Constitution, as incorporated against
the states via the Fourteenth Amendment. We understand
petitioner’s argument to be that his no-contest pleas are
invalid because, at the time of his 2012 pleas, he did not
know that he had the right to a unanimous jury verdict rec-
ognized years later in Ramos.
We addressed, and rejected, a similar argument in
Peeler v. Reyes, 328 Or App 110, 118, 537 P3d 206 (2023). In
Peeler, we explained that the validity of a criminal defen-
dant’s plea depends on whether the defendant was aware of
the law as it existed at the time that they made the decision
to plea. 328 Or App at 118. In that case, the post-conviction
petitioner accepted the state’s plea offer in which he pleaded
guilty to several counts of criminal conduct in exchange for
the state’s dismissal of other counts to reduce the manda-
tory minimum the petitioner faced. Id. at 113. The petitioner
entered his guilty plea in 2017, when controlling law permit-
ted criminal convictions by nonunanimous juries in state
courts, and he signed a declaration recognizing that fact. Id.
On appeal from the denial of post-conviction relief, we held
that petitioner’s pre-Ramos plea was valid because he was
correctly informed about his jury trial rights as they existed
at the time he decided to plead guilty. Id. at 118-19.
Similarly, here, the record reflects that petitioner
was correctly informed in 2012, when he decided to plead
no contest to the criminal charges, about the possibility of
being convicted by a nonunanimous jury. “The law at the
time, and for [46] years prior, permitted criminal convictions
236 Newmann v. Highberger
by nonunanimous juries in cases tried in state courts.”
Smith, 318 Or App at 568. Accordingly, under Peeler, the
post-conviction court did not err in denying petitioner’s due
process claim.
Fourth Assignment of Error. In his fourth assign-
ment of error, petitioner contends that the post-conviction
court erred in denying relief on his federal equal protection
claim. He argues that his no-contest pleas were the result
of Oregon’s racially motivated nonunanimous jury provision
and, thus, the application of the provision to him would have
been unconstitutional, had he not elected to plead no contest
to the charges.
Assuming without deciding that petitioner’s equal
protection challenge to Oregon’s nonunanimous jury rule
would supply a basis for setting aside his pleas, to prevail
on his equal protection claim, petitioner was required to
prove that Oregon’s nonunanimous jury law had a “racially
disproportionate impact” and that it was enacted with an
“invidious discriminatory purpose.” Washington v. Davis,
426 US 229, 239-42, 96 S Ct 2040, 48 L Ed 2d 597 (1976).
Petitioner cites Ramos to argue that Oregon’s jury provision
was enacted with a racially discriminatory purpose. See
140 S Ct at 1394 (“[C]ourts in both Louisiana and Oregon
have frankly acknowledged that race was a motivating
factor in the adoption of their States’ respective nonunan-
imous rules.”). But petitioner has not presented a factually
supported argument that would allow for the conclusion
that Oregon’s nonunanimous jury rule had a “racially dis-
proportionate impact.” Davis, 426 US at 239-42. That omis-
sion defeats his equal protection claim; therefore, the post-
conviction court did not err in rejecting the claim. Id. at 242
(it is not enough to meet only one factor of the equal protec-
tion analysis).
Affirmed.