Rudnitskyy v. State

“[P]etitioner has the burden of both production and proof to ‘establish that his or her counsel did not make all significant decisions in the exercise of reasonable professional judgment.’” Pereida-Alba v. Coursey, 356 Or 654, 672 n 14.

Petitioner appealed a denial of post-conviction relief. On appeal, Petitioner argued his trial counsel was ineffective because he (1) volunteered Petitioner’s admission during opening statements; (2) failed to object to testimony of that admission under OEC 403; and (3) failed to respond once the State used the admission, during closing, for a propensity-based argument. In response, the State argued that trial counsel (1) reasonably decided to concede the admission prior to the State; (2) reasonably believed an OEC 403 objection would not be successful; and (3) reasonably believed the State’s use of the admission in closing was not for propensity. The Court found that trial counsel likely recognized the strong evidence of Petitioner’s guilt and could reasonably conclude the best strategy was to convince the jury against Petitioner’s culpability by conceding the admission up front. The Court also found the admission was relevant for knowledge under OEC 404(3) and reasonable trial counsel could conclude its likely admission and likely unsuccessful objection under OEC 403. The Court further concluded that reasonable trial counsel could believe an objection to the State’s closing was untimely or ineffective. Thus, the Court held that Petitioner failed to meet the burden of establishing that trial counsel did not make reasonable tactical decisions. AFFIRMED.