Burcham v. Franke

An attorney's failure to challenge a lack of "consent" to consume alcohol being defined, by opposing counsel, as evident from the victim being 16 years old was inadequate assistance of counsel.

Petitioner was convicted of crimes arising from providing alcohol to a minor, and sexually assaulting her once intoxicated. Petitioner appealed and his sentence was affirmed. He sought post-conviction relief, stating that he had inadequate assistance of counsel at trial. The post-conviction court reversed his conviction entirely, agreeing with Petitioner that his attorney failed to adequately prepare for the state’s expert witness, and his attorney failed to object to the state’s novel definition of “consent.” The state appealed. The Court held Petitioner’s attorney’s failure to challenge the state’s definition of “consent” was inadequate assistance of counsel, and that this failure affected the result of his prosecution because certain charges should have been dismissed. The Court further found that more preparation and cross-examination of the state’s expert would not have affected the verdict. Portion of judgment reversing petitioner's convictions on Counts 7, 8, 9, and 10 reversed; otherwise affirmed.