Siefken v. Premo

Under Article 1, Section 11 of the Oregon Constitution, to prove prejudice a petitioner must demonstrate his or her trial counsel’s deficient performance "had a tendency to affect the result of the prosecution.’” Green v. Franke, 357 Or 301, 321 (2015).

Petitioner appealed a judgment denying his petition for post-conviction relief from his convictions. Petitioner assigned error to the post-conviction court’s denial of relief based on Petitioner’s claim he was prejudiced by the ineffective assistance of his trial counsel. On appeal, Petitioner argued his trial counsel failed to exercise reasonable professional skill and judgment because failed to offer into evidence a hand-written note which supported the defense’s theory of the case. Petitioner contended that his trial counsel could have satisfied the “low bar for authentication” of the note by calling a witness (petitioner did not offer an example of such a witness) to testify and explain why he or she believed the note was written by the victim. The Superintendent countered that, even though the authentication requirement can be satisfied by a relatively minimal showing of proof, “the rule still requires some showing that the note could have been authenticated at trial.” Under Article 1, Section 11 of the Oregon Constitution, to prove prejudice a petitioner must demonstrate his or her trial counsel’s deficient performance "had a tendency to affect the result of the prosecution.’” Green v. Franke, 357 Or 301, 321 (2015). In this case, the record contained no basis upon which the post-conviction court could have determined "the note" could have been authenticated at the criminal trial. The Court of Appeals determined that Petitioner’s testimony alone was not sufficient to establish the note could have been authenticated at his criminal trial. Therefore, the Court held that Petitioner failed to establish he was prejudiced by his trial counsel's failure offer the note as evidence. Affirmed.