Cartrette v. Nooth

Under ORS 138.620(2), to obtain post-conviction relief on the ground that his lawyer’s performance did not comport with Article I, section 11, standards, a petitioner must prove facts showing (1) that his counsel failed to exercise reasonable professional skill and judgment, and (2) that petitioner suffered prejudice as a result.

Petitioner appealed the post-conviction court’s denial of relief. Petitioner assigned error to the post-conviction court’s determination that his trial counsel’s failure to call a witness under subpoena did not violate his constitutional rights to adequate and effective assistance of counsel. On appeal, Petitioner argued the post-conviction court’s denial of relief violated his Article I, Section 11, right to effective assistance of counsel. Under ORS 138.620(2), “to obtain post-conviction relief on the ground that his lawyer’s performance did not comport with Article I, section 11, standards, [a] petitioner [is] required to prove facts showing (1) that his counsel failed to exercise reasonable professional skill and judgment, and (2) that petitioner suffered prejudice as a result.” In applying the first prong of its analysis, the court concluded that “a lawyer exercising reasonable professional skill and judgment, knowing what counsel knew at the time, would have called [the witness] to testify at petitioner’s trial.” Applying the second prong, the court concluded that “[b]ecause the omission of [the witness’s] testimony diminished the likelihood of the jury crediting petitioner’s version of events . . .  petitioner was prejudiced by his trial counsel’s decision not to call Smith to testify at his criminal trial.” Reversed and remanded.