Vasilash v. Cain

"Under Article I, section 11, where the effect of an attorney's failure during a jury trial is at issue, only those errors that 'could have tended to affect' the outcome of the trial require [reversal]." Farmer v. Premo, 363 Or 679, 700-01, 427 P3d 170 (2018) (quoting Green v. Franke, 357 Or 301, 322, 350 P3d 188 (2015).)

Petitioner appealed the denial of all his claims at post-conviction relief.  Petitioner assigned error to the court's conclusion that Petitioner failed to prove he was prejudiced by trial counsel's failure to investigate and call a witness at trial, as well as to procedural irregularities regarding Petitioner's Church motion. On appeal, Petitioner argued that "the court improperly conflated the two prongs of the constitutional test for inadequate assistance of counsel and also erroneously applied a 'heightened' prejudice standard."  In response, Defendant argued that the court properly found that Petitioner's claim failed for lack of prejudice because the witness testimony "would not have affected the jury's determination of what happened after the victim left with [P]etitioner, which is when the [S]tate argued that most of the charged conduct occurred."  "Under Article I, section 11, where the effect of an attorney's failure during a jury trial is at issue, only those errors that 'could have tended to affect' the outcome of the trial require [reversal]." Farmer v. Premo, 363 Or 679, 700-01, 427 P3d 170 (2018) (quoting Green v. Franke, 357 Or 301, 322, 350 P3d 188 (2015).)  The Court held that it was "'more than a mere possibility' that competent defense counsel could have used the witness's testimony in a way that 'could have tended to affect' the outcome of Petitioner's prosecution for first-degree kidnapping," and the court was incorrect in denying Petitioner's Church motion.  Reversed in part and remanded for further proceedings consistent with this opinion; otherwise affirmed.