Richardson v. Belleque

To be prejudiced by inadequate assistance of counsel, petitioner has the burden to prove “the tendency to affect the outcome” is based on “more than mere possibility but less that probability.” Green v. Frank, 357 Or 301, 322, 350 P3d 188(2015)

Superintendent, Belleque, appealed a Court of Appeals decision affirming the post-conviction court’s ruling that Petitioner, Richardson, was prejudiced by his trial attorney’s ineffective assistance of counsel. Inadequate assistance of counsel based on failure to exercise reasonable skill and judgment is “fact-specific and dependent on the ‘nature and complexity of the case.’” Johnson v Premo, 361 Or 688, 701 399 P3d 431 (2017). Strategic decisions must be based upon a “reasonable investigation.” Id. at 703. Belleque argued the proper test to determine if Richardson was prejudiced by inadequate assistance of counsel is if (1) it was “reasonably probably” defense counsel would present certain testimony and (2) if that testimony was “reasonably probable” to create a different outcome. Richardson argued the standard is if the inadequate performance had “a tendency to affect the result of the prosecution.” To be prejudiced by inadequate assistance of counsel, petitioner has the burden to prove “the tendency to affect the outcome” is based on “more than mere possibility but less that probability.” Green v. Frank, 357 Or 301, 322, 350 P3d 188(2015). The Oregon Supreme Court found that Richardson’s trial attorney’s decision to not present mitigating expert testimony was not a reasonable strategic decision because it was made without full knowledge of the underlying facts surrounding Richardson’s past. The Court held there was “more than mere possibility” the outcome of the dangerous-offender proceeding could have been affected if defense counsel investigated Richardson’s juvenile history and consulted with a defense expert about the prosecution’s expert’s report. The decision of the Court of Appeals and the judgment of the circuit court are affirmed.