O’Hara v. Premo

“To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135, 47 P3d 907 (2002), adh’d to as modified on recons, 187 Or App 528, 69 P3d 725, rev den, 336 Or 125 (2003).

Petitioner appealed the rejection of his request for post-conviction relief for convictions of first-degree rape and first-degree sexual abuse. Petitioner assigned error to the lower court’s denial of his claim of inadequate assistance of counsel. On appeal, Petitioner argued that his counsel was deficient because they did not request a jury instruction that would have required the State to prove Petitioner knowingly subjected the victim to forcible compulsion. In response, the State argued that Petitioner’s counsel acted reasonably. “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135, 47 P3d 907 (2002), adh’d to as modified on recons, 187 Or App 528, 69 P3d 725, rev den, 336 Or 125 (2003). The Court of Appeals reasoned that "we are aware of no theory by which the jury in this case could have found beyond a reasonable doubt that petitioner subjected the victim to forcible compulsion—as the jury did—while also finding that petitioner did so unknowingly." Thus, the Court held that "neither the evidence nor petitioner’s argument demonstrates that counsel’s allegedly deficient performance could have tended to affect the outcome of this case." Affirmed.