Sako v. Taylor 286 Or App 9 (2017)

In order to establish prejudice, it must be shown that counsel's performance "had a tendency to affect the result of the prosecution." Green v. Franke, 357 Or 301, 321 (2015).

Petitioner appealed the post-conviction court’s denial of his post-conviction relief, on the grounds that he was he denied his constitutional right to adequate and effective counsel. Petitioner assigned error to the post-conviction court's determination that, although Petitioner's counsel failed to "exercise reasonable professional skill,” Petitioner had failed to prove this error prejudiced him. On appeal, Petitioner argued that his defense at trial was based on a "credibility contest" between he and the victim. As such, Petitioner claimed that his counsel made four missteps which cost Petitioner opportunities to attack the victim's credibility. These missteps included failure to obtain two medical records, allowing evidence that had already been suppressed into trial, and that counsel allowed the state to "put on additional DNA evidence." In response, Respondent (Superintendent) argued that the lower court had reached the proper conclusion in determining that Petitioner was not prejudiced. The test for denial of adequate and effective assistance of trial counsel is a two-pronged determination: (1) whether the trial counsel performed inadequately; and (2) whether the petitioner was "prejudiced as a result of the trial counsel's error." Jackson v. Franke, 284 Or App 1, 3 (2017). In order to establish prejudice, it must be shown that counsel's performance "had a tendency to affect the result of the prosecution." Green v. Franke, 357 Or 301, 321 (2015). The Court of Appeals held that, while there was in fact a valid "credibility contest" at trial, none of the four alleged missteps constituted a denial of adequate and effective counsel. Therefore, the post-conviction court did not err. Affirmed.