Everett v. Premo

Under Article I, section 11, of the Oregon Constitution and the Sixth Amendment, a petitioner who seeks to invalidate a conviction based on counsel’s performance at trial must prove (1) the lawyer failed to exercise reasonable professional skill and judgment, and (2) the petitioner suffered prejudice as a result. Prejudice occurs where the lawyer’s deficient performance “could have tended to affect the outcome of the case.”

Petitioner appealed the post-conviction court’s denial of relief. In the underlying case, Petitioner was charged with five offenses stemming from incidents occurring during his arrest; Petitioner challenged two of these charges at trial, and Petitioner’s counsel requested a jury instruction describing the law of attempted assault in the third and fourth degree. None of the instructions given correctly stated the law. Particularly, the instruction given stated that in order to convict Petitioner of attempted assault in the second degree, the jury must find Petitioner committed the completed offense of second degree assault. ORS 161.405(1) provides that, “a person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” The other instructions were similarly defective, and Uniform Criminal Jury Instruction 1040 was not given. Petitioner was convicted on three offenses, and subsequently appealed, arguing the court plainly erred in failing to give the uniform instruction. Petitioner initiated this post-conviction relief proceeding after his appeal was affirmed by this Court and review was denied by the Supreme Court. The post-conviction relief court found the instructions overall were adequate and Petitioner was not prejudiced by the fact that his counsel failed to object to the court’s failure to give the uniform instruction. The Court held that the trial counsel’s failure to ensure the jury was properly instructed could have tended to affect the jury’s verdict, which is all that is required to determine whether Petitioner was prejudiced. Reversed and remanded with instructions for post-conviction court to grant petitioner relief on Count 2; otherwise affirmed.