Sartin v. Taylor

In order to prevail on an inadequate trial assistance claim, the court will evaluate the actions and arguments available to the lawyer under those circumstances, and whether the attorney would have raised a particular argument in exercising their professional skill and judgment. Maney v. Angelozzi, 285 Or App 596 (2017). In order to prevail on an inadequate appellate assistance claim for an unpreserved argument, the defendant must show that (1) counsel would have raised the argument, (2) the result of the error would have probably been different, and (3) the error involving the facts in the case is irrefutable. Harbert v. Franke, 284 Or App 374, 378 (2017); State v. Reyes-Camarena, 330 Or 431, 435 (2000).

Defendant appealed an order of post-conviction denial of relief after being charged and convicted of sexual abuse and invading the personal privacy of minor girls.  Defendant assigned error to post-conviction court’s denial of a claim of inadequate assistance of his trial counsel.  On appeal, Defendant argued that (1) his trial lawyer failed to object to witness statements that may have included “coaching” that were impermissible, (2) his trial lawyer failed to object to impermissible medical evaluator testimony that indicated the girls should have no contact with defendant, and (3) his appellate lawyer failed to raise new and unpreserved arguments of the impermissible medical evaluator testimony.  In order to prevail on an inadequate trial assistance claim, the court will evaluate the actions and arguments available to the lawyer under those circumstances, and whether the attorney would have raised a particular argument in exercising their professional skill and judgment.  Maney v. Angelozzi, 285 Or App 596 (2017).  In order to prevail on an inadequate appellate assistance claim for an unpreserved argument, the defendant must show that (1) counsel would have raised the argument, (2) the result of the error would have probably been different, and (3) the error involving the facts in the case is irrefutable.  Harbert v. Franke, 284 Or App 374, 378 (2017); State v. Reyes-Camarena, 330 Or 431, 435 (2000).  The Court held that the trial attorney did not fail in providing adequate assistance because the lawyer did object to the “coaching” and the trial court’s explanation of the objection, and the lawyer did attempt to exclude the medical evaluator testimony within the extent that the law provides.  The Court also held that the appellate attorney did not fail in providing adequate assistance because the medical examiner’s testimony was not obviously an error with the “no contact” recommendation and the appellate attorney’s judgment to not raise the unpreserved issue in a supplemental brief was not inadequate assistance.  Affirmed.