Torres v. Persson

“To obtain relief on a claim of inadequate assistance of counsel, petitioner must establish, by a preponderance of the evidence, that petitioner's trial counsel did not exercise the professional skill and judgment required by Article I, Section 11, of the Oregon Constitution and that petitioner suffered prejudice as a result."

Petitioner appealed an order from the court that denied claim for post-conviction relief which alleged ineffective assistance of counsel at trial. On appeal, petitioner contended that the post-conviction court erred when they concluded petitioner had not sufficiently established that the lawyer’s assistance was constitutionally deficient. In petitioner’s argument, she cited State v. Moriarty, 87 Or App 465 (1987) and State v. Stark, 7 Or App 145 (1971) reasoning that, because the jury instructions in those cases were accurate statements of law and would have been given by the trial court had petitioner's lawyer requested them, petitioner was prejudiced by the absence of those instructions. In response, the superintendent first argued against petitioner’s assumption that the instructions would have been given if requested. Second, the superintendent argued that because the contested instructions were unrelated to the state’s theory of the case, petitioner suffered no prejudice as a result of her lawyer’s alleged ineptitude. “To obtain relief on a claim of inadequate assistance of counsel, petitioner must establish, by a preponderance of the evidence, that her trial counsel did not exercise the professional skill and judgment required by Article I, Section 11, of the Oregon Constitution and that she suffered prejudice as a result.” Torres v. Persson, 305 Or App 466, 473 (2020). The court concluded that not all defense counsel exercising the constitutionally required professional skill and judgment would have requested those instructions. Thus, the court held that petitioner failed to establish that her lawyer’s assistance fell below constitutional standards. Affirmed.