Hagberg v. Coursey

To prove ineffective assistance of counsel, a criminal defendant must show that counsel failed to bring an argument based on law that existed at the time of trial, and it is not sufficient to show that the argument would later be deemed meritorious.

Petitioner appealed the decision of the post-conviction court that he failed to prove ineffective assistance of counsel. A criminal defendant’s right to legal representation is violated when defendant is prejudiced by counsel’s “failure to exercise professional skill,” Petitioner contends that his attorney should have objected to the admission of hearsay under the scope requirement of OEC 803(18a)(b). Petitioner argued that his attorney could have prevailed if he had objected to the scope requirement of OEC 803(18a)(b) when the prosecution presented notice that they would present hearsay evidence. Petitioner supports this claim by citing State v. Chase, 248 P.3d 432 (2011), a case where this argument prevailed. The post-conviction court held that because Chase occurred six years after petitioner's case, that counsel acted competently. On appeal, petitioner argued that counsel could have argued the “core principles of Chase” which were established by earlier cases addressing OEC 803(18a)(b). The Court of Appeals disagreed, holding that counsel’s experience at that trial court, and past experience with motions for particularity under OEC 803(18a)(b), that counsel acted competently when he did not object to the hearsay evidence. The Court reasoned that petitioner did not show that counsel could have made that an argument based on law existing at the time of trial simply because that argument was eventually deemed meritorious. Affirmed.