Argued and Submitted December 19, 2014.
Umatilla County Circuit Court. CV101331. Linda Louise Bergman, Senior Judge.
Michael R. Levine argued the cause for appellant. With him on the briefs was Matthew G. McHenry.
Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[269 Or.App. 379] GARRETT, J.
In this post-conviction case, petitioner argues that he was deprived of adequate assistance of counsel in his underlying prosecution for rape, sodomy, unlawful sexual penetration, and sexual abuse. The post-conviction court denied the petition, concluding that petitioner had failed to show that his trial counsel was deficient. On appeal, petitioner raises three assignments of error in which he contends that his trial attorney should have objected to (1) the admission of hearsay evidence, (2) the prosecutor's " vouching" for the victim's credibility, and (3) the trial court's imposition of consecutive sentences. We write to address only the first assignment of error, regarding the admission of hearsay testimony. For the reasons set out below, we affirm the judgment of the post-conviction court.
Article I, section 11, of the Oregon Constitution provides criminal defendants with the right to adequate legal representation, a right that is violated when a defendant's trial counsel fails to " exercise reasonable professional skill and judgment" and the defendant is prejudiced as a result. Kincek v. Hall, 217 Or.App. 227, 235, 175 P.3d 496 (2007). In a post-conviction proceeding, a petitioner has the burden of proving such a violation by a preponderance of the evidence. Id. A similar standard for effective assistance of counsel applies to claims brought under the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review post-conviction proceedings for legal error, Chew v. State of Oregon, 121 Or.App. 474, 476, 855 P.2d 1120, rev den, 318 Or. 24, 862 P.2d 1304 (1993), and accept a post-conviction court's factual findings if there is evidence to support them. Brock v. Wright, 98 Or.App. 323, 326, 778 P.2d 999 (1989).
Petitioner was convicted in 2005 of two counts of first-degree rape, ORS 163.375; three counts of first-degree sodomy, ORS 163.405; one count of first-degree unlawful [269 Or.App. 380] sexual penetration, ORS 163.411; and two counts of first-degree sexual abuse, ORS 163.427. The victim, M, was the daughter of petitioner's girlfriend and was eight-years old at the time of trial.
Approximately one month before trial, the prosecutor sent petitioner's trial counsel a notice pursuant to OEC 803(18a)(b). The letter stated, in relevant part, " I am providing you notice of the state's intent to introduce statements of the victim in the above entitled case at trial pursuant to [OEC 803(18a)(b)]. These statements have been previously provided to you via discovery." The letter did not include any detail about the statements that the state intended to introduce. At trial, the state introduced a DVD recording of M's interview at a child advocacy center. The recording contained several statements in which M described various acts by petitioner. Petitioner's attorney did not object to the admission of the DVD, which was played for the jury. In addition to the DVD, the state presented testimony
from M's older sister, A, in which A described several statements that M had made to A about what petitioner had done to M. Petitioner's attorney did not object to that testimony on hearsay or other grounds.
In his post-conviction petition, petitioner alleged that his counsel should have objected to the foregoing hearsay evidence on the ground that the state failed to give sufficient notice of its intent to use that evidence ...