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Siefken v. Premo

Court of Appeals of Oregon

April 12, 2017

GREGORY SIEFKEN, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Submitted November 3, 2015

         Marion County Circuit Court 09C11552; Linda Louise Bergman, Senior Judge.

          Ryan T. O'Connor and O'Connor Weber LLP fled the opening and reply briefs for appellant. Gregory Siefken fled the supplemental brief pro se.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.

         Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief from his convictions for three counts of second-degree rape, three counts of third-degree rape, and two counts of third-degree sodomy. Petitioner contends that he was denied adequate assistance of counsel in the criminal proceeding that resulted in those convictions because his trial counsel failed to offer into evidence a handwritten note purportedly showing the victim's past sexual behavior in support of the defense theory of the case. The post-conviction court determined that petitioner failed to establish the admissibility of the note and did not meet his burden of proof required for post-conviction relief. Held: Because the record contains no basis on which the post-conviction court could determine that the note could have been authenticated at petitioner's criminal trial, petitioner failed to establish that he was prejudiced when his trial counsel did not offer that note into evidence.

          SERCOMBE, P.J.

         Petitioner appeals a judgment denying his petition for post-conviction relief from his convictions for three counts of second-degree rape, ORS 163.365, three counts of third-degree rape, ORS 163.355, and two counts of third-degree sodomy, ORS 163.385. Petitioner contends, in his first assignment of error, that he was denied adequate assistance of counsel in the criminal proceeding that resulted in those convictions because his trial counsel failed to offer into evidence a handwritten note purportedly showing the victim's past sexual behavior, which would have, according to petitioner, supported the defense theory of the case.[1] We conclude that the post-conviction court correctly determined that petitioner failed to meet his burden of showing that the note would have been admissible at his criminal trial, and thus did not establish that he suffered any prejudice by trial counsel's failure to offer that evidence. Therefore, the postconviction court did not err in denying relief to petitioner and, accordingly, we affirm.

         The following facts are undisputed on appeal. Petitioner was charged by indictment with 17 counts of sexual offenses allegedly committed against his stepdaughter, based on sexual contact with her over a period of years. At the criminal trial, a medical doctor testified that a physical examination of the victim was consistent with repeated sexual intercourse and the doctor diagnosed the victim as having been sexually abused. The victim, who was 15 years old at the time of the criminal trial, testified that petitioner was the only person with whom she had had sexual contact. Petitioner denied that he had sexual intercourse with the victim. One of his theories of defense was that the victim fabricated the allegations of sexual abuse as retribution for petitioner and the victim's mother refusing to permit the victim to continue seeing an 18-year-old man with whom, according to petitioner, she had been sexually active.

         The jury found petitioner guilty on eight of the 17 counts. Petitioner filed a direct appeal. We affirmed without opinion and the Supreme Court denied review. State v. Siefken. 213 Or.App. 391, 161 P.3d 955 (2007), rev den, 344 Or 280 (2008).

         Petitioner then sought post-conviction relief, alleging in his second amended petition that he was denied adequate assistance of counsel, under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, section 11, of the Oregon Constitution, because trial counsel failed to exercise reasonable professional skill and judgment by, among other things, failing to "properly admit evidence of specific instances of sexual behavior engaged in by the alleged victim."

         At the post-conviction trial, petitioner testified about a handwritten note that he thought was important to the case.[2] He stated that the note was part of some information that his daughter and another woman had found at the house and had given to his trial counsel prior to trial when petitioner was in the county jail. He also testified that he had discussed the note with his trial counsel and told her that he "needed that [note] brought in, " and that she told him that she needed to get a handwriting expert. He assumed that she was getting an expert, but the note was not used at the trial. Petitioner also referred to a note during his deposition that took place before the post-conviction trial, [3] stating that the victim was "claiming in a note that she had sex with a 19-year-old boyfriend."

         The post-conviction court denied relief. In the handwritten portion of the court's ruling regarding the note, the judgment states, "No foundation for Exhibit # 3. No test[imony] as to who found or where. Not dated. No proof who wrote. Since not dated, no proof it impeaches V[ictim] since case came to light when she told friend she might be pregnant ...


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