Baranovich v. Brockamp

Under Article I, section 11, of the Oregon Constitution, prejudice means that counsel’s failure had a tendency to affect the result of the prosecution.

Brockamp appealed a judgment vacating Baranovich's convictions and granting a new trial. Brockamp argued that the post-conviction court erred in finding that Baranovich's counsel at trial was constitutionally deficient in a way that prejudiced her. Brockamp argued that “[p]etitioner must show that the likelihood of a different result is substantial, not just conceivable,” and that Baranovich had failed to do so. Under Article I, section 11, of the Oregon Constitution, “[p]prejudice means that counsel’s failure had a tendency to affect the result of the prosecution.” Richardson v. Belleque, 277 Or App 615, 625, ___ P.3d ___ (2016) (internal quotes omitted). Such failure must be consequential to “be regarded as of constitutional magnitude.” Green v. Franke, 357 Or. 301, 321, 350 P.3d 188 (2015) (quoting Krummacher v. Gierloff, 290 Or. 867, 883, 627 P.2d 458 (1981)) (internal quotes omitted). The Oregon Court of Appeals held that the post-conviction court’s finding that Baranovich's trial counsel’s failure to object to the introduction of inculpatory hearsay evidence “had a tendency to affect the result” of her trial was not in error. Affirmed.