Nemecek v. Taylor

“Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact.” Hayward v. Belleque, 248 Or App 141 (2012). “If the post-conviction court failed to make findings of fact on all the issues and there is evidence from which such facts could be decided more than one way we will presume that the facts were decided consistently with the post-conviction court’s conclusions of law.” Everett v. Premo, 279 Or App 470 (2016).

Petitioner appealed the post-conviction judgment which denied him relief from his convictions. Petitioner assigned error to the trial counsel’s failure to ensure proper jury instructions regarding his affirmative defense which deprived him of his right to adequate assistance of counsel. On appeal, Petitioner argued that he was prejudiced because the jury was not correctly instructed, never received written instructions, nor did the trial counsel object. In response, the Superintendent maintained that Petitioner was not prejudiced because the jury instructions “communicated to the jury the elements of [petitioner’s affirmative] defense and [petitioner’s] burden to prove it by a preponderance of the evidence.” “Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact.” Hayward v. Belleque, 248 Or App 141 (2012). “If the post-conviction court failed to make findings of fact on all the issues and there is evidence from which such facts could be decided more than one way we will presume that the facts were decided consistently with the post-conviction court’s conclusions of law.” Everett v. Premo, 279 Or App 470 (2016). The Court of Appeals held that Petitioner was not prejudiced because there is evidence on the record that the jury received Petitioner’s written instructions in regard to his defense and the trial court delivered his instructions orally to the jury. Affirmed.