Bacon v. Cain

To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, the petitioner must show by a preponderance of the evidence facts demonstrating that (1) counsel failed to exercise reasonable professional skill and judgment, and (2) counsel’s failure had a tendency to affect the result of his trial. Montez v. Czerniak, 355 Or 1, 7 (2014).

Petitioner appealed judgment that denied his petition for post-conviction relief.  On appeal, Petitioner argued that his trial counsel was inadequate and prejudicial such that he was denied alternative incarceration programming and earned reductions at sentencing.  To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon  Constitution, the petitioner must show by a preponderance of the evidence facts demonstrating that (1) counsel failed to exercise reasonable professional skill and judgment, and (2) counsel’s failure had a tendency to affect the result of his trial. Montez v. Czerniak, 355 Or 1, 7 (2014).  There must be “substantial and compelling reasons” to reject petitioner’s eligibility for alternative incarceration programming. ORS 137.750(1).  The Court found Petitioner’s trial counsel inadequate because she failed to present witnesses or evidence to support mitigation of Petitioner’s sentence in two separate sentencing hearings. Additionally, the Court found trial counsel’s failure to present evidence of Petitioner’s extended sobriety, work ethic and societal contributions affected his sentencing because “a reasonable factfinder would not have found substantial and compelling reasons to deny programming for petitioner.”  Thus, the Court held that Petitioner’s trial counsel was inadequate and her failure to offer any mitigating evidence prejudiced the outcome of his sentencing.  Reversed and remanded to grant post-conviction relief for inadequate counsel; otherwise affirmed.