Derschon v. Belleque

In order to prove ineffective or inadequate assistance of trial counsel at a post-conviction relief hearing, a petitioner must show that: (1) the counselor’s performance was unreasonable, and (2) the counselor’s unreasonable performance prejudiced the outcome of the trial.

Petitioner appealed a judgment denying him post-conviction relief for his robbery convictions. Petitioner argued that he was denied effective and adequate assistance of trial counsel under both the United States Constitution and the Oregon Constitution. Ineffective and inadequate assistance of trial counsel requires a petitioner to show that: (1) the counselor’s performance was unreasonable, and (2) the counselor’s unreasonable performance prejudiced the outcome of the trial. A court will look at the post-conviction evidence and the entire record from the petitioner’s criminal trial when determining whether an error had a tendency to affect the result of the prosecution. The Court of Appeals found that Petitioner’s counselor’s failure to object to a detective’s hearsay testimony was not prejudicial given the state’s overwhelming evidence from unconnected witnesses that proved Petitioner’s guilt. Similarly, because many witnesses positively identified Petitioner as one of the robbers and placed him at the scene of the crime, his counselor’s failure to call a cell phone expert did not tend to affect the outcome of the case. The Court held that even if Petitioner’s trial counselor’s performance was unreasonable, the State provided overwhelming evidence of Petitioner’s guilt and, therefore, the error did not affect the outcome of the case. Affirmed.