Rubi v. Nooth, 372 P.3d 601

Petitioner was charged with 11 felonies after forcibly moving and sexually assaulting his wife; parties agreed to a stipulated-facts trial resulting in convictions on eight counts (including two counts of first-degree kidnapping) and dismissal of three counts.
The plea agreement included a stipulated sentencing range of 166–265 months; the trial court sentenced petitioner to the top of that range (265 months), citing prior felony sex‑crime convictions and an intent to give a "lifetime" sentence under ORS 137.719(1).
Petitioner sought post-conviction relief, alleging trial counsel was ineffective under Article I, § 11 (and the Sixth Amendment) for failing to recognize and raise State v. Wolleat as defeating the intent element of kidnapping, and thus failing to avoid the kidnapping convictions.
The post-conviction court found counsel constitutionally ineffective for not raising Wolleat but concluded petitioner suffered no prejudice because the sentencing judge would have imposed 265 months even without the kidnapping convictions.
Petitioner argued below and on appeal that (1) the court could not have legally reached 265 months on the remaining six convictions and (2) counsel’s failure to recognize Wolleat likely affected the plea negotiations and sentencing range; the court rejected both contentions as either refuted by the record or unpreserved.

Issue	Petitioner’s Argument	State’s Argument	Held
Whether trial counsel was constitutionally ineffective for failing to raise Wolleat and challenge kidnapping convictions	Counsel failed to recognize Wolleat and should have prevented kidnap convictions	Counsel’s performance not outcome-determinative; parties had stipulated facts and range	Post-conviction court: counsel was ineffective; appellate court did not disturb that finding
Whether petitioner was prejudiced by counsel’s failure (i.e., result would differ)	Without kidnapping convictions, sentencing would have been lower (max 242 months on remaining counts), so 265 months shows prejudice	Sentencing judge made clear intent to impose top of range; 265 months could legally be imposed on remaining counts	No prejudice; sentencing court would have imposed 265 months anyway
Whether inadequate recognition of Wolleat would have changed plea negotiations or range	If counsel had raised Wolleat, negotiations likely would yield a lower sentencing range	Prosecutor stated he would not have agreed to dismiss kidnapping charges; no evidence negotiations would differ	Unpreserved (no evidentiary proof presented); appellate court declines to consider it
Whether convictions themselves (separate from sentence) prejudiced petitioner and require vacatur	Kidnapping convictions are unconstitutional and should be vacated, reducing sentence	Petitioner did not preserve that argument below; remedy contested	Unpreserved; court did not reach vacatur on that basis

Montez v. Czerniak, 355 Or 1 (explains two-step post-conviction ineffective-assistance framework)
State v. Wolleat, 338 Or 469 (interprets kidnapping intent requirement)
Lichau v. Baldwin, 333 Or 350 (ineffective-assistance analysis referenced in Montez)
Moen v. Peterson, 312 Or 503 (prejudice standard for no‑contest pleas)