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 supplemental 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 submitted 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 assignments 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, respectively. 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 petitioner wanted to raise, but that counsel refused to assert, or 

for substitution of post-conviction counsel.

The post-conviction court held a hearing on petitioner’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 substitution 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 counsel 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 denying petitioner’s Church motion. He argues that, under Lopez 

v. Nooth, 287 Or App 731, 403 Pd 848 (2017), the postconviction 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 oppositional 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, arguments 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 counseled 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 failing 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 insufficient 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 assessing 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 prejudice 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 credible 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 recognized 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 defendant’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 mandatory minimum the petitioner faced. Id. at 113. The petitioner 

entered his guilty plea in 2017, when controlling law permitted 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 assignment 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 nonunanimous 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 disproportionate impact.” Davis, 426 US at 239-42. That omission defeats his equal protection claim; therefore, the postconviction court did not err in rejecting the claim. Id. at 242 

(it is not enough to meet only one factor of the equal protection analysis).

Affirmed.