Sutherland v. Fhuere

“To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, 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 prejudiced petitioner, meaning “counsel’s failure had a tendency to affect the result of [the] trial,” commonly referred to as the deficiency and prejudice prongs. Bacon v. Cain, 327 Or App 673 (2023).

Petitioner appealed a judgment that denied his request for post-conviction relief, claiming ineffective assistance of counsel. He argued that his attorney failed to move for a judgment of acquittal or to challenge the state's proof regarding the “dangerous weapon” element of first-degree assault. “To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, 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 prejudiced petitioner, meaning “counsel’s failure had a tendency to affect the result of [the] trial,” commonly referred to as the deficiency and prejudice prongs. Bacon v. Cain, 327 Or App 673 (2023). The Court found sufficient evidence for a trier of fact to determine that the asphalt was a dangerous weapon, as the petitioner had pushed the victim onto it from a third-floor balcony, capable of causing serious injury. The Court also found that the petitioner did not prove that a motion for acquittal would have succeeded. The Court reasoned that the possibility of success on the dangerous weapon argument was insufficient to demonstrate prejudice. The Court upheld the post-conviction relief ruling and affirmed the decision.