Evans v. Nooth

To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show “that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Petitioner was charged with sexually assaulting A and B. Petitioner appealed, challenging the lower court's admission of a doctor’s testimony at trial. The Court of Appeals reversed, the State sought reconsideration, and petitioner’s appellate counsel filed a response and conceded that those two counts should be affirmed. The post-conviction court denied petitioner’s claim and the Court of Appeals affirmed. The Oregon Supreme Court reversed. On remand, the court addressed the question of whether an appellate attorney, exercising reasonable skill and judgment at the time of petitioner’s direct appeal, would have argued that the trial court’s erroneous admission of the doctor’s medical diagnosis of abuse required reversal of all convictions rather than conceding that two counts were unaffected by the trial court’s error. To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show “that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). According to the court, “appellate counsel’s concession was the final manifestation of counsel’s inadequacy.” The court concluded that, “not only did appellate counsel have a plausible argument on prejudice that should have been asserted; petitioner had a winning argument.” Therefore, the court held that petitioner is entitled to post-conviction relief. Reversed and remanded.