Drown v. Persson

“To prevail on a post-conviction claim of inadequate assistance of counsel, the burden in on the petition to show, by 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 (2003).

Petitioner appealed the denial of her petition for post-conviction relief from her 2008 convictions, which entailed 12 counts of second-degree assault and two counts of fourth-degree assault.  Among other errors, the Petitioner mainly assigned error to the trial counsel’s failure to object to the trial court’s use of an erroneous “natural and probable consequence” jury instruction in connection with the state’s theory of accomplice liability. On appeal, Petitioner argued that her trial counsel had been inadequate and ineffective because they failed to object to the natural and probable cause consequence instruction. “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden in on the petition to show, by 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 (2003).  The Appellate Court held that the jury could not have found petitioner guilty of any of the charged crimes on a natural and probable consequence theory of an earlier crime, and therefore the Petitioner failed to demonstrate that she was prejudiced by her counsel's’ failure to object. Reversed/affirmed/remanded