MONTEZ v. CZERNIAK

, then proposed that the jurors be told about the first death sentence:

"Your Honor, I think the defense team with a great deal of reservation feels that it is necessary at this point for the jury also to be informed Mr. Montez was sentenced to death by the first jury, but in some fashion told that they are not to consider that as part of their deliberation, because the evidence presented may or may not be the same as what was presented then.

"THE COURT: Boy, I'm —

"MS. LAI: We're asking for that instruction simply because it will become very clear that Mr. Montez was on death row as we go through the rest of this trial."

The prosecutor pointed out that he had instructed all the state's witnesses to avoid mentioning that petitioner had been housed on death row, thereby avoiding the inference that he had previously been sentenced to death. The judge asked Lai whether that information changed her opinion, but she explained that it did not:

"MS. LAI: No, because it is our understanding that the State intends to bring in acts allegedly or committed by Mr. Montez while in the penitentiary system, part of that time was while he was on death row, and the defense needs to and will offer some sort of explanation for that activity in that specific area of the penitentiary."

The court expressed its hesitancy to instruct the jurors that petitioner had previously been sentenced to death. After Lai again conferred with petitioner, the following exchange took place:

"MS. LAI: Your Honor, it is the desires of Mr. Montez that the jury be told about the prior death sentence.

"* * * * *

THE COURT: Mr. Montez, have you had sufficient time to speak with your attorneys? You feel adequately advised? You know my reluctance to do this.

"[PETITIONER]: Yes, we will proceed that way."

Lai again noted petitioner's agreement to the plan: "Mr. Montez wishes to go through with advising the jury of the prior death penalty sentence, and is prepared to answer your questions."

In response to the prosecutor's request that the court ensure that petitioner understood the choice he was making, the trial court questioned petitioner:

"Now, Mr. Montez, as to my giving this [instruction about the previous death sentence,] do you want me to give it?

"[PETITIONER]: Yes.

"THE COURT: And do you understand that because of your asking for this and not objecting * * *, that in effect your ability to have this matter overturned or reversed based upon my doing this is nonexistent in a real sense?

"[PETITIONER]: I understand that.

`THE COURT: And have you had a sufficient chance to talk to Miss Lai and talk to Miss Dickison so you feel you've gotten the legal advice that's necessary for you to talk to me about this?

"[PETITIONER]: I have, Your Honor.

`THE COURT: Any questions?

"[PETITIONER]: No."

The jury returned to the courtroom and the trial court gave the following instruction:

"Before we proceed to the next witness, I want to explain something to you in an effort to remove the mystery or any speculation from this matter: As you're all now probably aware, Mr. Montez was convicted of Aggravated Murder, as we've discussed here, by a jury after a trial in 1988. A death sentence was imposed. An appeal was taken, as required by law, and a new sentencing hearing was ordered. You've been impaneled to decide the sentence.

"Now as to your role as the trier of facts, this is a new proceeding, and you will decide the weight to be given the evidence presented here, which may be different than the evidence presented before.

"Now, what happened previously, with the exception of the guilty finding, is not a consideration in this case. I tell you this because I don't want you wondering, and I don't want you speculating, and I don't want you to misuse the information before you."

The state subsequently presented evidence of petitioner's fights with other inmates while he was in prison; one of those fights involved another death row inmate. In response to some of that testimony, petitioner's counsel elicited testimony from the state's witnesses about the conditions petitioner faced while incarcerated on death row. They then presented testimony from several inmates, including death row inmates, to explain conditions on death row and to describe petitioner's behavior while incarcerated. Some of those inmates testified that petitioner had helped them and inspired them, and others testified that they had seen improvements in petitioner's behavior during his incarceration.

In his petition for post-conviction relief, petitioner alleged that trial counsel were ineffective because they "introduced evidence that petitioner previously had been sentenced to death and had been on death row and advised petitioner to waive any objections to the introduction of such evidence[.]" He also alleged that counsel were ineffective for calling the inmates as witnesses; for failing to interview the inmate witnesses; for eliciting or failing to object to the inmate witnesses' testimony about the lengths of their sentences and scheduled parole release dates; and for failing to object to "irrelevant and unduly prejudicial testimony" by two inmate witnesses about the circumstances of their escapes and attempted escapes from prison. The post-conviction court rejected the claims, making the following findings of fact:

"74. Petitioner did not produce evidence proving that his counsel in 1992 unreasonably disclosed that petitioner had previously been on death row.

"75. Petitioner wanted the jury in 1992 to learn that he had been on death row and had generally gotten along well with the other inmates on death row and in general population.

"76. Petitioner did not produce evidence proving that his counsel in 1992 acted unreasonably in preparing for, and in calling, inmates to testify on petitioner's behalf.

"77. It was petitioner's decision to call inmates to testify on his behalf, to show that he was not dangerous or violent in the prison setting.

"78. Petitioner personally selected the inmates that he wanted to testify on his behalf."

On appeal, petitioner argues first that counsel's decision was "not only unreasonable, it was a total abdication of their duty to provide competent representation." He asserts that counsel had other, "less prejudicial means of offering the same evidence." Petitioner claims that the information about the prior death sentence "is the type of evidence that is so prejudicial that it denied Montez a fair trial." Petitioner also argues that his consent to counsel's approach should be disregarded because it was based on poor advice of counsel.

The state responds that counsel's choice to inform the jury about petitioner's previous death sentence and his housing on death row was a reasonable tactical choice. It asserts that the related claim that counsel gave petitioner bad advice about whether to inform the jury about his death sentence and housing was not presented in the petition for post-conviction relief and thus is unpreserved and, in any event, is inconsistent with the record. The state explains:

"Counsel had the choice of two evils — they could provide no information and allow the jury to speculate about what misdeeds caused petitioner to be in prison, or they could allow the jury to hear that petitioner was in prison because of an overturned death sentence. Further, * * * counsel had little mitigating evidence to present, and in light of petitioner's expressed desires, counsel reasonably asked the court to truthfully inform the jury of petitioner's prior death sentence. By doing so, counsel ensured that it would not appear to the jury that petitioner was attempting to conceal the facts of the case. Moreover, petitioner could freely present mitigating evidence to help explain why he was involved in fights in prison."

Finally, the state asserts, petitioner failed to prove that any actions by counsel prejudiced his case.

We agree with the post-conviction court's rejection of petitioner's claim, for two reasons. First, although petitioner asserts that it was counsel's idea to inform the jury of the prior sentence and that he merely "acquiesced" in it, the post-conviction court found otherwise: "Petitioner wanted the jury in 1992 to learn that he had been on death row and had generally gotten along well with the other inmates on death row and in general population." That finding is supported by the colloquy between petitioner and the trial court in the 1992 penalty-phase retrial. It was petitioner's burden to show that his affirmative, well-documented choice to follow that strategy was the result of bad advice, and he did not carry that burden. In short, the record supports the post-conviction court's finding that the choice — no matter whether it was petitioner or counsel who initially proposed the strategy — was petitioner's. The point is not dispositive, because counsel's duty can include trying to persuade a client against implementing an ill-advised litigation strategy. However, such persuasion may be more difficult and, in the end unsuccessful, where, as the post-conviction court found here, the strategy originated with the client.

In any event, counsel's strategy was not unreasonable. "It is well established that a reviewing court will not second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment." Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001). Here, we agree with the state that counsel's choice of strategy did not demonstrate deficient performance. For example, counsel reasonably could have believed that it would benefit petitioner if the jury knew not only that another jury had sentenced him to death, but that the death sentence had been determined by a court to be improper. Moreover, a jury could believe that a death row inmate might have nothing to gain from pretending, such that his exemplary behavior is more likely to be heartfelt than is the case with other inmates. We reject petitioner's position that it is never appropriate to tell a jury in a penalty-phase rehearing that the defendant had previously been sentenced to death.

We turn to the related claim regarding the choice to call death row inmates to testify on petitioner's behalf. Petitioner argues that the witnesses' testimony "harmed Montez's case, because these character witnesses were convicted violent felons who lacked credibility with and fostered little [or] no endearment from the jury." He points out that the jury was taken to the Oregon State Penitentiary to hear the inmates' testimony. He points out that none of the inmate witnesses was interviewed by the defense team before they testified. He asserts that counsel's handling of the witnesses at trial prejudiced him:

"Montez was further prejudiced when counsel either elicited or allowed in, without objection, from most of these witnesses the existence and circumstances of prior early releases from prison, present parole release dates and the circumstances of past escapes and attempted escapes. This testimony[,] along with the mention of `death row,' was inflammatory and induced the jury to vote for the death penalty to ensure that Montez would not be paroled or escape in the future."

The state responds that it was petitioner's choice to call the inmate witnesses and that the witnesses testified favorably for petitioner. They generally described how he had helped them, how he was not an aggressor, how he acted as a peacekeeper, and how he was attempting to transform himself into a better person. The inmates also testified about the conditions in prison generally and on death row specifically, and how those conditions caused tension among the prisoners. The state points out that the prosecutor did not impeach the inmates regarding their positive substantive testimony about petitioner, but only asked about their sentences, release dates, and escape attempts. It also notes that the record refutes petitioner's assertion that counsel did not adequately prepare for the inmates' testimony. Counsel's — and petitioner's — tactical choice to call the inmates, the state concludes, was reasonable.

We agree. First, it is undisputed that petitioner himself made the choice to call the inmates and that he personally chose the inmates who would testify. The record supports the post-conviction court's finding that petitioner wanted the inmates to testify to the positive improvements he had made while in prison, partly to rebut the state's evidence of some assaultive behavior on his part. As the United States Supreme Court explained in Strickland, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." 466 US at 691.

Here, petitioner — who was very active in the preparation and presentation of his case — wanted the inmates called. Although counsel initially questioned the wisdom of that approach, they decided the approach was reasonable in light of the sparse mitigation hand they had been dealt. As Dickison testified in the post-conviction court:

"It's my recollection — whether it's right or wrong — that [petitioner] very much wanted the jury to learn what the [prison] environment was like. [He wanted the jury to be] introduced to some of the other long-term guests there, and be told of the type of situation it was there."

In response to the state's attorney's question about other mitigating evidence, Dickison conceded that "[t]here was not an awful lot." When asked if she had tried to dissuade petitioner from having the inmate witnesses called, Dickison responded:

"I don't think I tried to dissuade him. I think I did tell him I didn't like the idea.

"But then again, there was some advantage to exposing a jury who probably wasn't aware of that sometimes evil things that human beings can do to other individuals who had done the same thing and were not sentenced to death.

"This is an appalling case to practiced lawyers. To a jur[or] who spends her life teaching * * * second graders or whatever, you have to get over that initial recoiling."

Given the dearth of other mitigating evidence and petitioner's insistence on calling the inmate witnesses, counsel were not ineffective for following that strategy.

Nor does the record support petitioner's claim that counsel were unprepared for the presentation of those witnesses. When Dickison was asked about whether the inmates had been interviewed before they testified, she stated that there had been communication with the inmates, that she was aware of their criminal records, that she had an overview of what their testimony would be, and that petitioner had represented that each inmate would testify favorably. Moreover, petitioner did not prove that counsel's choice not to object to testimony about early release from prison amounted to deficient performance or that it prejudiced him. As Dickison testified, "there's always a weighing that occurs when you're examining or cross-examining or objecting to witnesses, and you have to decide if it's going to make the unwanted statement more important to the jury if you object and bring attention to it or if you don't." Even assuming that counsel's choices regarding use of the inmate testimony and whether to object to some of it were not, in hindsight, the best choices, that is not the test. Even effective counsel may make "tactical choices that backfire, because, by their nature, trials often involve risk." Krummacher, 290 Or at 875. The post-conviction court's findings are supported by evidence in the record and dispose of petitioner's arguments about the inmate testimony.

As noted, petitioner asserts that counsel should have objected to evidence of the inmates' sentences, release dates, and escapes. On direct review of the penalty-phase retrial, the Supreme Court held that evidence of early release from prison was not relevant, so that the trial court erred in admitting it. The court concluded, however, that the error was harmless, as the jury heard — without objection — substantially similar testimony from other inmates. The court also refused to address petitioner's claim on direct review that the trial court had erred in admitting evidence of escapes and attempted escapes, as counsel had not objected and the claim was, therefore, unpreserved. Montez, 324 Or at 355-56. But a determination on direct review that a claim is not preserved is a far cry from a determination in post-conviction that counsel's choice not to object to certain evidence demonstrates ineffective assistance. As noted, counsel reasonably chose not to object to the evidence.

As stated above, petitioner's third assignment of error includes several specific claims under the general heading that counsel failed to provide effective assistance in "preparing for and presenting a defense on the sentencing question of `risk of future acts of violence.'" Having resolved petitioner's subclaim regarding testimony by prison inmates, we turn to his argument that counsel generally failed to adequately address the "future dangerousness" question that the jury would answer. Petitioner asserts that the state's theory was that, based on petitioner's past criminal and assaultive behavior and the extreme nature of the crime, the jury should answer "yes" to the future dangerousness question. Counsel's job, according to petitioner, was to rebut that argument by presenting evidence to neutralize or explain petitioner's prior violent acts and to demonstrate that he was unlikely to commit serious acts of violence in prison. According to petitioner, "[a]ccepted practice among reasonable capital defense counsel was to introduce evidence in the penalty phase which rebutted [the type of arguments made by the state] and dispelled the notion that the client is dangerous based on the nature of the crime and/or his past crimes."

One of petitioner's specific arguments about his counsel's alleged failure to rebut the state's case on future dangerousness is that counsel offered the jury "no meaningful evidence upon which to make their evaluation of the risk that Montez presented." As the state characterizes the argument, petitioner asserts that "counsel failed to investigate and present expert testimony on assessing the risk of violence and prison managemen[.]"

In the post-conviction court, petitioner introduced the affidavit of Cunningham, a nationally recognized clinical and forensic psychologist. Cunningham evaluated petitioner and reviewed records from a variety of sources. In his 181-page affidavit, he discussed both petitioner's background and personal characteristics, and how capital defendants generally should be assessed for risk. In Cunningham's opinion, counsel in the 1992 penalty-phase retrial failed to present necessary evidence on risk assessment:

"The errors in violence risk assessment that characterized Mr. Montez' capital murder sentencing phase trial were neither inevitable nor unavoidable. There was conceptual and research literature regarding violence risk assessments, and violence risk assessments of capital offenders easily available to experts or defense counsel in 1992 that would have been of significant assistance to the jury both in avoiding misconceptions and error, and in approaching the capital sentencing risk assessment task with a greater degree of scientific understanding. Mr. Montez' risk of serious violence while incarcerated could have been reliably estimated utilizing actuarial techniques that were then individualized to him. These risk estimates were not appropriately expressed as the sort of global categorical conclusions offered in argument by the State. Instead, they would have been most informatively expressed as probabilities — as statements of relative likelihood."

Cunningham concluded that "[r]eliable methodology and research data was available at the time of Marco Montez' capital sentencing trial in 1992 and could have had an important impact on the jury in avoiding error in their assessment of his future violence risk." Petitioner asserts that "Dr. Cunningham demonstrated that offenders with capital offenses present a low risk of committing violent acts while in prison and on old age parole and that Montez fit within the overall pattern." The type of actuarial data supplied by Cunningham should have been presented in 1992, according to petitioner.

The state responded to petitioner's evidence in the post-conviction court with its own expert, Dr. Richard Hulteng, a lawyer and forensic clinical psychologist. Hulteng reviewed Cunningham's extensive affidavit and a number of other documents, including the transcript of the 1992 penalty-phase rehearing, police reports, petitioner's criminal history, and other evaluations and affidavits prepared for the post-conviction case. Like Cunningham's affidavit, Hulteng's reports were extensive and technical. At bottom, Hulteng disagreed with a number of Cunningham's premises and, ultimately, his conclusions.

Hulteng disagreed with Cunningham's view of the availability of actuarial studies and base rates for capital sentencing purposes in 1992. As Hulteng stated in his report, it was not until 1998 that Cunningham would "publish his first article advocating the use of institutional violence base rates for capital sentencing." That statement is consistent with Dickison's statement in 2001 that there were no experts in 1992 testifying about actuarial studies on future dangerousness. Hulteng also stated that he had not "come across any literature from that period taking the position advocated by Dr. Cunningham, namely that an expert should focus exclusively on the risk of violence within the prison or in old age upon parole." Although both petitioner and the state presented additional information on the nature of risk assessment and prediction of future dangerousness — and on the state of the art in 1992 — suffice it to say that each side had its expert, and the experts disagreed.

The post-conviction court rejected petitioner's claim that counsel in 1992 were ineffective for failing to present evidence such as the evidence that he presented through Cunningham in the post-conviction case:

"65. Petitioner presented the testimony of Dr. Mark Cunningham, through affidavit, on the issue of future dangerousness. The information regarding institutional violence base rates on which Dr. Cunningham relied was not published until six years after petitioner's 1992 resentencing proceeding.

"66. Dr. Richard Hulteng credibly testified by affidavit that there were no experts in 1992 testifying about the prediction of future dangerousness based on actuarial studies and base rates.

"67. Dr. Hulteng credibly testified that petitioner's prior arrest record was significant in predicting whether petitioner would be dangerous in the future, and that Dr. Cunningham failed to take that factor into consideration in forming his opinion.

"68. Dr. Hulteng credibly testified that the testimony on future dangerousness in the 1992 resentencing proceeding * * * was generally consistent with clinical practices and available empirical literature at that time.

"69. Dr. Hulteng credibly testified that Dr. Cunningham's interpretation of how actuarial principles should be applied in a capital sentencing context involves a number of assumptions * * * was not articulated by Dr. Cunningham until after petitioner was sentenced in 1992.

"70. Petitioner failed to prove that trial counsel did not adequately investigate and present evidence on the issue of petitioner's future dangerousness in the 1992 resentencing proceeding."

In our view, the record supports those findings, and they are dispositive. As the state argues:

"Counsel cannot be faulted for failing to present an opinion like Dr. Cunningham's when the research on which such an opinion is based was not available at the time of trial, even assuming that it was otherwise reliable. Just as counsel is not constitutionally inadequate for failing to predict changes in the law, counsel is not inadequate for failing to predict changes in psychological research or other trends in current issues."

Petitioner nonetheless takes issue with the post-conviction court's findings, arguing that they are not supported by the record. He asserts that the post-conviction court "applied an erroneous standard by weighing the two expert opinions." But the post-conviction court did not weigh the evidence on the ultimate question, viz., the risk that petitioner would commit future criminal acts of violence. Rather, it considered what type of evidence on the issue was available in 1992, what competent counsel in 1992 were doing, and whether petitioner met his burden to show both deficient performance and prejudice. In making that determination, the court considered the conflicting expert testimony. That was appropriate. Although petitioner views the conflicting evidence differently than does the state or the post-conviction court, the record supports the post-conviction court's findings. The court correctly rejected petitioner's claim that counsel were ineffective for failing to present evidence such as that presented by Cunningham. We reject without discussion petitioner's other arguments regarding deficiencies in counsel's treatment of the future dangerousness issue.

We turn to petitioner's fourth assignment of error. In his petition for post-conviction relief, petitioner alleged that trial counsel were ineffective in that they "failed to advise petitioner about his right of allocution at the sentencing hearing, thereby misleading petitioner into forgoing his right to speak in his own behalf before sentence was imposed. See Rogers, 330 Or [282, 4 P3d 1261 (2000)]." The post-conviction court made the following findings in rejecting that claim:

"88. Petitioner's presentation regarding the issue of allocution, including the testimony and evidence of counsel, Lynne Dickison, was not consistent.

"89. The statement of trial counsel, Lynne Dickison, that she did not advise petitioner of his right to allocute is not credible.

"90. The record does not establish that trial counsel did not inform petitioner of his right of allocution.

"91. Petitioner's testimony in this proceeding regarding his remorse for the murder was not credible.

"92. Taking part in allocution would have been inconsistent with petitioner's strategy of not participating in the 1992 resentencing proceeding on `so-called' jurisdictional grounds.

"93. Petitioner testified in this proceeding that he and trial counsel agreed that he should not participate in the resentencing, in order to avoid a possible waiver of a `jurisdictional' argument. Participation in allocution would have been inconsistent with that strategy.

"94. In the 1992 resentencing proceeding, petitioner did not express anything to the trial court which could reasonably be interpreted as a desire to allocute.

"95. Had petitioner been given a specific opportunity to make an unsworn statement in allocution to the jury, it would not have made any positive difference."

On appeal, petitioner argues that counsel were ineffective when they "failed to advise him of his right to make an unsworn statement in allocution at his penalty phase retrial." According to petitioner, the right to allocute — that is, make an unsworn statement to the sentencer, not subject to cross-examination — was well-established in 1992. He asserts that, had he been advised of his right to make such a statement, he would have told to the jury about the consecutive sentences he received on his non-aggravated-murder crimes. He could have explained that, in light of those other sentences, he would not be eligible for parole until at least 12 1/2 years after the 30-year minimum sentence he would serve on a life sentence. That is, he claims, he could have reassured the jury that, even if they sentenced him to life in prison, he would not be released for at least 42 1/2 years. Petitioner also asserts that he could have made statements "accepting responsibility and of contrition" that would have been "powerful mitigation." Petitioner argues that that alleged deficiency in counsel's performance had a tendency to affect the result of the penalty-phase retrial:

"The prejudicial effect of counsel's failure in this case is underscored by numerous studies on juror attitudes in capital cases, which show that remorse and the length of time a juror thinks someone sentenced to life imprisonment actually will serve are significant factors in jury decisions on whether to impose the death penalty."

The state responds that petitioner did not meet his burden to prove that trial counsel did not, in fact, advise him of his right of allocution. The state further asserts that the right of allocution on which petitioner relies was not established in 1992:

"Petitioner's claim that he had a right to make an unsworn statement to the jury is based on State v. Rogers, 330 Or 282, 300-01, 4 P3d 1261 (2000). Obviously, that case had not been decided at the time of petitioner's 1992 penalty-phase retrial. * * * [T]he evidence supports the implicit findings and the conclusion of the post-conviction court that petitioner's trial counsel in 1992 had no reason to know of the principles that would be announced in Rogers eight years later. Petitioner did not prove, given the state of the law at the time, that reasonable trial counsel would have advised him that he had a right to allocute by making an unsworn statement to the jury."

Finally, the state maintains, petitioner failed to prove prejudice for two reasons. First, it asserts, "the evidence before the post-conviction court showed that a statement from petitioner in the form of allocution would have been cumulative and ineffectual." It notes that the jury heard a number of petitioner's statements of remorse, for example, in his statements to Detective Goodale. Second, the state asserts, "petitioner failed to prove prejudice because of his lack of credibility." It asserts that the post-conviction court found that petitioner would not have allocuted, had he been advised of that right. "And even if petitioner had made a statement in allocution to the jury," the state concludes, "the evidence presented to the post-conviction court established that there were many reasons that the jury would not have found his statements credible."

Petitioner's argument on appeal rests squarely on the factual premise that he was unaware of his right to allocute and on the legal premise that competent counsel in 1992 would have informed him of that right. The post-conviction court found that petitioner did not "establish that trial counsel did not inform petitioner of his right of allocution." That finding is supported by the record. Petitioner testified that counsel did not inform him of the right to allocute, but the post-conviction court at least implicitly found petitioner not to be credible on the allocution issue. The court found that petitioner's presentation regarding the allocution issue "was not consistent." It noted that allocution would have been inconsistent with petitioner's strategy not to participate in the penalty phase in an attempt to prevent the trial court from having "jurisdiction" over him. The post-conviction court found, at least implicitly, that petitioner was not credible.

As the state points out, the post-conviction court made an explicit finding that petitioner was not credible in his statement that he would have chosen to allocute, if he had known about it. That finding does not go, however, to the factual issue whether counsel told petitioner of the right.

Moreover, the post-conviction court found that Dickison's statement that she did not advise petitioner of his right to allocute was "not credible." Dickison's statements on the issue varied among a 2001 interview, her 2003 deposition, and her 2004 testimony in the post-conviction court. Among her other statements during her post-conviction testimony, Dickison — when asked whether she had discussed allocution with petitioner — agreed that she would have had every reason to. Dickison also testified that, if she was aware of the right of allocution in 1992, "and if I wasn't distracted by the one million one hundred things I was doing, I don't believe that there would have been any reason I would not have told" petitioner about the right of allocution. That testimony, and other portions of the post-conviction record, support the trial court's foundational finding that Dickison was not credible in her statement that she did not tell petitioner about the right of allocution and the court's ultimate factual finding that he was so informed. This court is bound by the post-conviction court's findings, which are supported by evidence in the record. Petitioner failed to meet his burden to show that counsel did not inform him of his right of allocution.

In any event, we agree with the state that, given the state of the law in 1992 governing the right of allocution, even if counsel had failed to inform petitioner of the right, counsel would not have failed to exercise reasonable professional skill and judgment. In his petition for post-conviction relief, petitioner cited Rogers for the proposition that he had a constitutional right to allocution. But Rogers was decided in 2000, eight years after petitioner's 1992 penalty-phase retrial. In 1992, no federal or state constitutional right to allocution was clearly recognized. As the Supreme Court said in its 2000 Rogers opinion, it was not even at that time clear whether the right to offer sworn testimony subject to cross-examination satisfied the right of allocution:

"This court has determined that `the right * * * to be heard by himself in Article I, section 11, encompasses the right of all criminal defendants to allocution, which `refers to a convicted defendant's opportunity to speak before sentencing [.]' DeAngelo [v. Schiedler], 306 Or [91,] 94, 93 n 1[, 757 P2d 1355 (1988)]. According to the state, however, DeAngelo leaves open the question of the form that allocution may take. The state is correct that DeAngelo does not resolve that issue directly."

330 Or at 296. The Rogers court stated that it was addressing "for the first time the parameters of allocution in the context of a capital sentencing proceeding, in which both jury and court play a role." Id. at 306. Moreover, as the Rogers court pointed out, the United States Supreme Court had not, at that time, "resolved definitively the questions of whether and to what extent the right of allocution may have a basis in the United States Constitution." Id. at 303.

Whether a capital defendant had a right to make an unsworn statement to the jury, not subject to cross-examination, was an open question in 1992. Although petitioner introduced evidence in the post-conviction court that some criminal defense lawyers were arguing for such a right in 1992, the state introduced evidence that the state had vigorously and successfully opposed that position. It follows that, had counsel not told petitioner that he could allocute, that action would not have shown a lack of professional skill and judgment. See Wells v. Peterson, 315 Or 233, 236, 844 P2d 192 (1992) ("Failure of petitioner's criminal trial counsel to contend that ORS 161.620 prohibited the sentence here was not inadequate assistance of counsel, because at the time of trial the meaning of the statute was not clearly settled. Reasonable counsel could have disagreed about whether to make that argument at the time that the original case was tried."); Teague v. Palmateer, 184 Or App 577, 592, 57 P3d 176, rev den, 335 Or 181 (2002) ("Because Apprendi's rule was new, counsel exercising reasonable professional skill and judgment could not anticipate that the law would develop as it did, and reasonable counsel could have disagreed as to whether to raise the argument that Apprendi eventually endorsed.").

Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).

V. CONCLUSION

In conclusion, although petitioner demonstrated in the post-conviction court other ways in which counsel could have handled the 1992 penalty-phase retrial, he failed to prove that his counsel's performance both was deficient and that it had a tendency to affect the outcome of the proceeding. The post-conviction court did not err in denying relief.

Affirmed.