Argued and Submitted July 9, 2014
Washington County Circuit Court. C100159CV. Thomas W. Kohl, Judge.
Pamela J. Walsh, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Ryan O'Connor argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[268 Or.App. 841] DE MUNIZ, S. J.
Defendant appeals a judgment granting petitioner post-conviction relief, arguing that that the post-conviction court applied the incorrect legal standard for determining prejudice. We agree and reverse and remand to the post-conviction court for further proceedings.
Our review in post-conviction proceedings is for errors of law. Chew v. State, 121 Or.App. 474, 476, 855 P.2d 1120 (1993). Under that standard, we are bound by the post-conviction court's findings of fact when the evidence in the record supports those findings. Brock v. Wright, 98 Or.App. 323, 326, 778 P.2d 999 (1989).
The facts relevant to this appeal are largely procedural and undisputed. Petitioner pleaded guilty to the charges of second-degree assault, ORS 163.175, strangulation, ORS 163.187, and assaulting a public safety officer, ORS 163.208. She subsequently sought post-conviction relief, alleging that her guilty pleas were not knowing and voluntary because her trial counsel rendered inadequate assistance in that he misunderstood the culpability requirements for the crimes with which petitioner was charged, failed to adequately advise petitioner about a potential " defense" under ORS 161.125(1), and misunderstood which party had the burden of proof for the aforementioned " defense."  Following a hearing, the post-conviction court concluded that petitioner was entitled to post-conviction relief because petitioner's trial counsel incorrectly advised petitioner that she would have the burden of proof regarding her inability to form the mental state element for the crimes with which she was charged, failed to follow up with a defense expert, Dr. Prescott, regarding petitioner's
ability to form the prerequisite mental state, and that those failures prejudiced petitioner because they had a " substantial tendency * * * to affect petitioner's decision to accept the plea offer."
[268 Or.App. 842] On appeal, defendant contends that, in granting post-conviction relief, the post-conviction court applied an incorrect prejudice standard in concluding that " trial counsel's failure to correctly advise petitioner of the burden of proof and culpability requirement and failure to follow up with Dr[.] Prescott on the issue of knowingly, given the true burden of proof, had a tendency--in fact a substantial tendency--to affect petitioner's decision to accept the plea offer." According to defendant, in Moen v. Peterson, 312 Or. 503, 513, 824 P.2d 404 (1991), the Oregon Supreme Court held that, to prove prejudice, a post-conviction petitioner that has pleaded guilty to the underlying crime must prove, by a preponderance of the evidence, that he or she would not have entered the guilty plea were it not for counsel's inadequate assistance. We agree.
In Moen, the petitioner had alleged that his no-contest plea was void because his counsel had not informed him that the trial court might impose a minimum ...