Newmann v. Highberger

“First, under the state constitution, a petitioner must show that trial counsel ‘failed to exercise reasonable professional skill and judgment,’ and under the federal constitution, that ‘counsel’s performance fell below an objective standard of reasonableness.’” Smith v. Kelly, 318 Or App 567, 568-69 (2022). “Second, under both constitutions, a petitioner must show that counsel’s inadequate performance caused prejudice. Id. at 568.

Appellant petitioned for post-conviction relief from no-contest pleas on 12 counts stemming from his involvement in a 2012 drug-related armed robbery. The original trial court determined that his pleas were “freely, voluntarily, and intelligently” made, and he was sentenced to incarceration for 300 months. The post-conviction court denied Appellant’s petition for relief. On appeal, Appellant assigned error to the post-conviction court’s decision, arguing, inter alia, that his trial counsel failed to advise him that there was no factual basis for the assault charges against him because of insufficient evidence to demonstrate that he caused a physical injury to the victim, and therefore his no-contest pleas were not made knowingly. He further argued that absent inadequate assistance of counsel, he would not have entered the no-contest pleas. “First, under the state constitution, a petitioner must show that trial counsel ‘failed to exercise reasonable professional skill and judgment,’ and under the federal constitution, that ‘counsel’s performance fell below an objective standard of reasonableness.’” Smith v. Kelly, 318 Or App 567, 568-69 (2022). “Second, under both constitutions, a petitioner must show that counsel’s inadequate performance caused prejudice. Id. at 568. The Court held that it did not need to reach the question of whether Appellant’s trial counsel did not perform to constitutional standards because Appellant “did not demonstrate that he was prejudiced by any deficiency in counsel’s advice.” The Court reasoned that because the post-conviction court found that Appellant’s “declaration that he would have gone to trial on the two assault charges had he known about the alleged lack of factual bases for them” was not credible, and that it was bound by the post-conviction court's credibility finding, he was unable to sufficiently establish the requisite showing of prejudice by his counsel’s conduct. The Court also rejected Appellant’s three other assignments of error. Affirmed.