Mitchell v. State of Oregon

“In reviewing the denial of a post-conviction claim based on inadequate assistance of counsel, the first question is ‘whether petitioner demonstrated by a preponderance of the evidence that his lawyer failed to exercise reasonable professional skill and judgment.’" Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487 (2014) (citation omitted). "Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendancy to affect the result of his trial." Id. (citation omitted).

Petitioner appealed her conviction of one count of possession of methamphetamine. Petitioner assigned error to the post-conviction court’s ruling that, despite agreeing that counsel was “deficient” in delivering his closing argument, the delivery did not rise to the level of prejudicing her case. On appeal, Petitioner argued that the post-conviction court applied the wrong standard in measuring whether there was prejudice to her case. In response, the State agreed the wrong standard was used to determine prejudice, but regardless, the result would have been the same. “In reviewing the denial of a post-conviction claim based on inadequate assistance of counsel, the first question is ‘whether petitioner demonstrated by a preponderance of the evidence that his lawyer failed to exercise reasonable professional skill and judgment.’" Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487 (2014) (citation omitted). "Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendancy to affect the result of his trial." Id. (citation omitted). The Court in applying the correct standard, with deference to Defendant's trial counsel, found that “defense counsel not only made a strong argument for the state generally, with little defense to counterpoint, but he specifically and repeatedly suggested to the jurors that they should be skeptical of his client’s credibility, asking only, at most, that they find a grain of genuineness’ in her testimony about her negative feelings about methamphetamine.” The Court further stated that in its role in looking at the effect of the error, that the error affected the result of Petitioner’s trial.

Reversed and remanded.