Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jackson v. Franke

Court of Appeals of Oregon

March 1, 2017

MELTON J. JACKSON, JR., Petitioner-Appellant,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Argued and Submitted April 13, 2015

         Umatilla County Circuit Court CV080485 Rick J. McCormick, Senior Judge.

         Affirmed.

          Andy Simrin argued the cause and fled the briefs for appellant.

          Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge. [*]

         Case Summary: Petitioner appeals from the post-conviction court's judgment denying him relief on a variety of claims. He assigns error to the court's grant of the defendant superintendent's motion for partial summary judgment. Petitioner also assigned error to the denial of his cross-motion for partial summary judgment on his claim that his trial attorney was constitutionally inadequate for failing to object to a diagnosis of sexual abuse in the absence of physical corroborating evidence. Held: Petitioner failed to present sufficient evidence, in the context of the cross-motions for summary judgment, to create a genuine dispute regarding whether he was prejudiced by counsel's failure to object to the sexual abuse diagnosis. Accordingly, the post-conviction court did not err in granting the superintendent's motion for summary judgment and denying petitioner's cross-motion for summary judgment.

         Affirmed.

          HADLOCK, C. J.

         In this post-conviction proceeding, petitioner challenged, among other things, the adequacy of legal representation he received in conjunction with his underlying criminal trial, in which he was convicted of first-degree sodomy. One of petitioner's inadequate-assistance claims was based on his lawyer's failure to object to a diagnosis of sexual abuse in the absence of physical corroborating evidence.[1] Petitioner assigns error to the post-conviction court's grant of the defendant superintendent's motion for partial summary judgment, and to the denial of petitioner's cross-motion for partial summary judgment, on that claim. We conclude that petitioner failed to present sufficient evidence, in the context of the cross-motions for summary judgment, to create a genuine dispute regarding whether he was prejudiced by counsel's failure to object to the sexual-abuse diagnosis. Accordingly, the court did not err in granting the superintendent's motion for summary judgment and denying petitioner's cross-motion for summary judgment.[2] We therefore affirm the judgment denying petitioner post-conviction relief.

         I. LEGAL STANDARDS AND STANDARD OF REVIEW

         Post-conviction relief is warranted when there has been a "substantial denial" of "rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1)(a). A criminal defendant is guaranteed the right to adequate counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Montez v. Czerniak, 355 Or 1, 6, 322 P.3d 487, adh'd to as modified on recons, 355 Or 598, 330 P.3d 595 (2014); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (United States Constitution requires the "effective" assistance of counsel). The test for determining whether a petitioner has been denied adequate assistance of counsel, under both the state and federal constitutions, is two-pronged: First, the petitioner must show that his or her counsel performed inadequately. Second, the petitioner must demonstrate that he or she was prejudiced as a result of counsel's error. Pereida-Alba v. Coursev. 356 Or 654, 661-62, 342 P.3d 70 (2015); Strickland, 466 U.S. at 688. "The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2).

         "When reviewing rulings on cross-motions for summary judgment, we review the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Aiirv. Buell. 270 Or.App. 575, 578, 348 P.3d 320 (2015) (internal quotation marks omitted); see also Putnam v. Angelozzi. 278 Or.App. 384, 388, 374 P.3d 994 (2016) (in reviewing a grant of summary judgment to the defendant superintendent in a post-conviction case, we "determine whether the court correctly concluded that there are no genuine issues of material fact and that [the] defendant was entitled to judgment as a matter of law"); ORCP 47 C.

         II. THE FACTS AND PROCEDURAL HISTORY

         A. The Underlying Criminal Proceedings

         In September 2001, petitioner was convicted, after a trial before the court, of one count of first-degree sodomy[3]The victim of that crime is petitioner's biological son, M.

         M had been living in a motel in Vancouver, Washington, with his older siblings, B and N, petitioner, and petitioner's girlfriend. One day, while petitioner was at work, police came to the hotel and arrested petitioner's girlfriend on an unrelated charge. M and his siblings were taken into protective custody and placed in the foster home of Gillette.

         In December 2000, when M was ten years old, he visited Gillette's mother, Garden. After Garden observed M touching Gillette's son inappropriately, M began to sob. He disclosed to Garden that petitioner had touched him like that before. Garden informed Gillette, who asked M what had happened between him and petitioner. M told Gillette that petitioner had made M touch him and that petitioner had sodomized him. Gillette relayed M's account to N, and asked N to speak with M. N testified that, when she asked M what had happened, he told her that petitioner "had stuck his penis in [M's] butt."

         Gillette reported the incident to the police and an investigation was initiated. In June 2001, M was examined by Dr. Steinberg, a pediatrician with CARES Northwest who specializes in the areas of child abuse and neglect, and developmental disabilities. Steinberg conducted a physical examination of M and found no physical signs of abuse. After the physical examination was complete, Steinberg spoke briefly with M and asked M if anyone had ever yelled at him, hurt him, or touched his "private parts." M replied, "My dad did." During a subsequent interview, M indicated that, when he was six years old, petitioner had sodomized him and threatened to kill him if he told anyone about it. After considering M's medical, social, and behavioral history, the physical examination, and M's statements and demeanor during the interview, Steinberg reached a "medical ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.