Harbert v. Franke

Under Article I, Section 11, of the Oregon Constitution, aside from “extraordinary circumstances,” such as when the error is apparent on the face of the record, “appellate counsel’s failure to raise unpreserved matters does not, and cannot, constitute inadequate assistance.”

Petitioner, a criminal defendant, appealed a judgment denying him post-conviction relief.   Petitioner argued that, under Article I, Section 11, of the Oregon Constitution, he was denied adequate assistance of appellate counsel.  Petitioner specifically argued his appellate lawyer failed to raise, as plain error, the trial court’s decision to proceed to a bench trial on Petitioner’s two cases with a written jury trial waiver that listed only one of the case numbers.  Under Article I, Section 11, of the Oregon Constitution, aside from “extraordinary circumstances,” such as when the error is apparent on the face of the record, “appellate counsel’s failure to raise unpreserved matters does not, and cannot, constitute inadequate assistance.” Pratt v. Armenakis, 199 Or App 448, 467, adh’d to on recons, 201 Or App 217 (2005), rev den, 340 Or 483 (2006). In this case, after considering the waiver issue and deciding it lacked merit, defendant’s appellate attorney filed a Balfour brief indicating that there was no “arguably meritorious issue” to raise on appeal. The Court of Appeals held that Petitioner failed to demonstrate that every appellate attorney exercising reasonable professional skill and judgment would have raised an unpreserved challenge to the jury trial waiver in this case. Affirmed.