Stomps v. Persson

Petitioner failed to prove her counsel failed to exercise reasonable professional skill and judgment, Green v. Franke, 357 Or 301, 312 (2015) and that she then suffered prejudice as a result. Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002).

Stomps appeals the denial of her claims of ineffective assistance of counsel on post-conviction relief by her counsel failing to call a witness who would have testified to consent issues regarding her marijuana use. Under Article I, section 11 of the Oregon Constitution, to prove post-conviction relief on inadequate or ineffective assistance of counsel, Stomps must first show that her counsel failed to exercise reasonable professional skill and judgment by a preponderance of the evidence. Green v. Franke, 357 Or 301, 312 (2015). Second, she must show that she then suffered prejudice as a result. Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002). In Oregon, determining the adequacy of counsel under either Oregon or federal constitution is functionally equivalent. State v. Davis, 345 Or 551, 579 (2008). To prevail on the performance prong of the claim, Stomps must show, by a preponderance of the evidence, facts showing counsel’s failure to exercise reasonable professional skill and judgment. Trujillo v. Maass, 312 Or 431, 435 (1991). The court rejected Stomp's first argument because whether a petitioner provided knowing, intelligent, and voluntary consent was a legal question that was not subject to expert testimony. State v. Unger, 356 Or 59, 79-80 (2014). Next, the evidence in the record supported the post-conviction court’s findings, so a conclusion that counsel exercised reasonable professional judgment in calling a different expert witness was supported. Even if Stomps was correct about the reasonableness prong, she has not shown that counsel’s failure to obtain other expert testimony was prejudicial. Affirmed.