Mellerio v. Nooth

To show inadequate assistance of counsel a petitioner “must demonstrate two things: that his trial counsel failed to exercise reasonable professional skill and judgment, and that he suffered prejudice as a result.”

Petitioner was indicted and found guilty four counts of coercion. After the dismissal of his direct appeal, petitioner amended petition for post-conviction relief. He argued that the record included evidence of multiple distinct occurrences that could have constituted coercion and that, in the absence of a concurrence instruction, different jurors were free to base their verdicts on different occurrences. He alleged that his trial counsel was constitutionally inadequate in failing to request a “Boots” jury concurrence instruction with respect to the coercion counts and that, because of that failure, “the jury was free to pick-and-choose [without requisite consensus] what alleged factual scenarios would constitute the offense.” To show inadequate assistance of counsel, a petitioner “must demonstrate two things: that his trial counsel failed to exercise reasonable professional skill and judgment and that he suffered prejudice as a result.” In showing prejudice, “the petitioner [must] established by a preponderance of the evidence,” that counsel’s deficient performance “had a tendency to affect the result of the trial.” The Court concluded that constitutionally adequate counsel would have recognized that – contrary to trial counsel’s proffered justification for not requesting a concurrence instruction – the evidence at trial did, in fact, disclose for Counts 7 and 8 multiple, separate occurrences of a crime, involving the same perpetrator and the same victim, charged in a single count. Reversed and remanded with instructions for the post-conviction court to grant petitioner relief on Counts 7 and 8.