Mesta v. Franke

The Oregon Constitution does not require appellate counsel to put forth every possible argument in the small chance a subsequent change in law will make the argument effective at a later date.

Mesta appealed from a general judgment denying him post-conviction relief. Mesta had been convicted of four counts of sexual abuse. An important factor in his conviction was the testimony of Dr. Oddo, who testified that three of five children involved had been sexually abused by Mesta. He came to this conclusion as a result of physical tests and historical information about the patients. Soon after Mesta's conviction and unsuccessful appeal, the Supreme Court decided a similar case in favor of the petitioner on the basis that the doctor's diagnosis was inadmissible because it violated OEC 403. Mesta claimed in his petition for post-conviction relief that his counsel had inadequately represented him in the appeal by failing to raise the argument that the doctor's diagnoses violated OEC 403. The Court held that appellate counsel had adequately represented Mesta because at the time of Mesta's appeal the state of the law was such that an OEC 403 argument was almost certain to fail. Counsel's decision not to put forth what he or she reasonably believed to be a losing argument was a valid exercise of his or her professional judgment. Affirmed.