Walraven v. Premo

Under the standard announced in Wade v. Brockamp, trial counsel's failure to object to the "natural and probable consequences" jury instruction as to a defendant's aggravated murder charge equates to constitutionally inadequate counsel.

Walraven sought review of the Court's December 24, 2014, decision affirming without opinion a post-conviction court's judgment denying Walraven post-conviction relief. Walraven sought reconsideration after the Court's decision in Wade v. Brockamp which held that trial counsel’s failure to challenge the “natural and probable consequences” instruction given to the jury at the a defendant's trial amounted to constitutionally inadequate assistance of counsel. 268 Or App 373, 390, 342 P3d 142 (2015). The Court held that the post-conviction court erred in determining that Walraven's trial counsel was not constitutionally inadequate when the counsel failed to object to the "natural and probable consequences" jury instruction as the instructions applied to the aggravated murder and murder convictions. However, the Court also held that the court did not err in petitioner's felony murder conviction because the jury instruction was not prejudicial to him. Reconsideration allowed; former disposition withdrawn; reversed and remanded with instructions for post-conviction court to grant petitioner relief on Counts 1, 2, and 5; otherwise affirmed.