Green v. Franke

To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, a petitioner must show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. The Oregon Constitution does not give a criminal defendant the right to a perfect defense, but it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the defense.

Green appealed a judgment denying him post-conviction relief. A jury found Green guilty of 18 counts of illegal sexual conduct involving nine minor victims. On appeal, Green argued inadequate assistance of counsel. Green maintained that constitutionally adequate counsel would have requested a jury instruction prohibiting jurors from finding, from the nature and quantity of the charges involved, that Green had a propensity to sexually abuse young women and therefore finding that it was likely he had acted in conformity with that propensity and committed the alleged crimes. The Court of Appeals concluded that, under the Oregon Constitution, Green was, in fact, prejudiced by his trial counsel’s deficient performance with respect to his convictions on each of the first-degree rape counts, the second- and third-degree sexual abuse counts where he denied engaging in the sexual contact that formed the basis of the charge, and the second- and third-degree sexual abuse counts where Green conceded consensual sexual contact with the victim. Green was not prejudiced with respect to his convictions, but was prejudiced with respect to the resulting sentences, on Counts 9, 18, and 19, and is therefore entitled to be resentenced on those counts. Green did not demonstrate that he was prejudiced with respect to either his conviction or his sentence on Count 20. Reversed and remanded.