Kurtz v. Cain

Under State v. Walker, 350 Or 540 (2011), counsel need not engage in detailed, comprehensive analysis in order to “put all on notice about the nature of a party’s arguments” and preserve issues for appeal.

Kurtz appealed a judgment denying him post-conviction relief. In his second assignment of error, Kurtz assigned error to the post-conviction court’s conclusion that he failed to establish “that his trial counsel performed deficiently in failing to request merger” of two counts of tampering with a witness or that the deficient performance prejudiced him. On appeal, Kurtz argued that “case law establishes” that the two counts should have merged and that “all reasonable criminal defense counsel would have raised the issue.” In response, the superintendent argued that the work required of trial counsel to raise the merger issue would have been too onerous, and the sentence after merger would likely be the same. Under State v. Walker, 350 Or 540 (2011), counsel need not engage in detailed, comprehensive analysis in order to “put all on notice about the nature of a party’s arguments” and preserve issues for appeal. The Court found that trial counsel could have “alert[ed] the trial court that merger was appropriate” without the arduous analytical process that the superintendent alleges was necessary. The Court reasoned that failure to argue for merger prejudiced Kurtz because it resulted in the entry of two convictions rather than one. Judgment on Claim 2(a) reversed and remanded; otherwise affirmed.