Tenorio v. Bowser

A petitioner may raise a challenge to the constitutional adequacy of their counsel’s assistance on post-conviction review. See ORS 138.530(1)(a). “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135 (2002).

After Petitioner’s trial counsel failed to request a jury-concurrence instruction during his trial for sexual abuse and unlawful sexual penetration, he filed an inadequate assistance of counsel claim, which was denied. He assigns error to the post-conviction court’s denial of his claim, arguing that the jury-concurrence instruction was required because there was evidence of more than one episode of sexual abuse, and the prosecutor did not specify which episode(s) resulted in and constituted the charged criminal conduct. A petitioner may raise a challenge to the constitutional adequacy of their counsel’s assistance on post-conviction review. See ORS 138.530(1)(a). “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135 (2002). Because it was unclear whether two witnesses’ testimonies were describing the same episode, a mix-and-match verdict likely resulted from Petitioner's trial. Because he adequately demonstrated that his trial counsel’s failure to request a jury-concurrence instruction caused him to suffer prejudice, Petitioner is entitled to post-conviction relief. Reversed and remanded as to Petitioner’s first assignment of error; otherwise affirmed.