Hernandez v. Berger

When the record supports a lower court's finding that there was an inconsistency between a petitioner's testimony and that of their trial counsel, the Court of Appeals is bound by that factual finding. Davis v. Cain, 304 OrApp 356, 358 (2020).

Petitioner appealed the post-conviction court's denial of his petition for post-conviction relief. Petitioner assigned error to the trial court's framing of the ineffective assistance of counsel performance prong inquiry as a "credibility contest." On appeal, Petitioner argued that his testimony did not in fact conflict with his trial counsel's on the issue of whether Petitioner was informed of the extent of the State's burden of proof. When the record supports a lower court's finding that there was an inconsistency between a petitioner's testimony and that of their trial counsel, the Court of Appeals is bound by that factual finding. Davis v. Cain, 304 OrApp 356, 358 (2020). The Court held that the record sufficiently supported the post-conviction court's finding that there were inconsistencies between Petitioner's testimony and that of his trial counsel. Affirmed.