and submitted March 7, 2017
County Circuit Court 14C12296 Linda Louise Bergman, Senior
N. Balske argued the cause and fled the briefs for appellant.
Rebecca M. Auten, Assistant Attorney General, argued the
cause for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Petitioner appeals a judgment denying his petition
for post-conviction relief from his convictions for
first-degree rape and first-degree sexual abuse. Petitioner
argues that he received constitutionally inadequate and
ineffective assistance of trial counsel because his attorneys
did not request a jury instruction providing that the state
was required to prove that petitioner had knowingly subjected
the victim to forcible compulsion. Held: The
post-conviction court did not err in denying relief because
petitioner failed to establish that his counsel's failure
to request the instruction prejudiced him.
Or. 420] DEHOOG, P. J.
appeals the denial of his petition for post-conviction relief
from his 2010 convictions for first-degree rape and
first-degree sexual abuse. Petitioner raises four challenges
to the post-conviction court's ruling; all four
assignments of error allege that the court erred in denying
his claims based on constitutionally inadequate and
ineffective assistance of trial counsel. We reject
petitioner's first three assignments of error without
discussion. We write, however, to address petitioner's
fourth assignment, relating to a jury instruction that
counsel did not request. Because petitioner has failed to
establish that counsel's allegedly deficient performance
in failing to request the instruction prejudiced him, we
2010, petitioner was convicted by a jury of first-degree
rape, ORS 163.375, and first-degree sexual abuse, ORS
163.427, for the 2002 sexual assault of a 14-year-old family
friend. We affirmed the convictions on direct appeal.
State v. O'Hara, 251 Or.App. 244, 283 P.3d 396
(2012), rev den, 353 Or. 209 (2013). Petitioner then
petitioned for post-conviction relief. Petitioner raised
several claims of error, all alleging that his trial counsel
had been constitutionally inadequate. The post-conviction
court denied relief, concluding that petitioner had not
demonstrated deficient performance or prejudice as to any of
his claims. This appeal followed.
review post-conviction proceedings for errors of law.
Green v. Franke, 357 Or. 301, 312, 350 P.3d 188
(2015). The post-conviction court's historical findings
of fact are binding on this court if evidence in the record
supports those findings. Id. "If the
post-conviction court failed to make findings of fact on all
the issues-and there is evidence from which such facts could
be decided more than one way-we will presume that the facts
were decided consistently with the post-conviction
court's conclusions of law." Id.
Article I, section 11, of the Oregon Constitution and the
Sixth Amendment to the United States Constitution protect a
criminal defendant's right to counsel. Farmer v.
Premo, 283 Or.App. 731, 739, 390 P.3d 1054, rev
allowed, 362 [291 Or. 421] Or 208 (2017). The Oregon
Supreme Court has recognized that "the standards for
determining the adequacy of legal counsel under the state
constitution are functionally equivalent to those for
determining the effectiveness of counsel under the federal
constitution." Montez v. Czerniak, 355 Or. 1,
6-7, 322 P.3d 487 (2014), adh'd to as modified on
recons, 355 Or. 598, 330 P.3d 595 (2014). Both
constitutions provide a right '"not just to a lawyer
in name only, but to a lawyer who provides adequate
assistance.'" Id. at 6 (quoting State
v. Smith, 339 Or. 515, 526, 123 P.3d 261 (2005)
(emphasis added)). Accordingly, a petitioner may raise a
challenge to the constitutional adequacy of his or her
counsel's assistance on post-conviction review.
See ORS 138.530(1)(a). "To prevail on a
post-conviction claim of inadequate assistance of counsel,
the burden is on the petitioner to show, by a preponderance
of the evidence, facts demonstrating that trial counsel
failed to exercise reasonable professional skill and judgment
and that the petitioner suffered prejudice as a result."
Lambert v. Palmateer, 182 Or.App. 130, 135, 47 P.3d
907 (2002), adh'd to as modified on recons, 187
Or.App. 528, 69 P.3d 725, rev den, 336 Or. 125
did in his petition for post-conviction relief, petitioner
argues on appeal that his trial attorneys performed
deficiently because they failed to request a jury instruction
stating that, to establish the offenses of first-degree rape
and first-degree sexual abuse as charged, the state must
prove that he knowingly subjected the victim to
forcible compulsion. Because, after petitioner's trial,
we held in another case that such knowledge is a material
element of that offense, petitioner contends that his
attorneys provided inadequate assistance when they failed to
request an instruction advising the jury of that requirement.
The superintendent argues in response that counsel acted
reasonably by not seeking the instruction; the superintendent
alternatively argues that petitioner has failed to
indictment in petitioner's case alleged that he had
"unlawfully and knowingly" committed first-degree
rape "by forcible compulsion, " ORS 163.375(1)(a),
and "unlawfully and knowingly" committed
first-degree [291 Or. 422] sexual abuse "by means of
forcible compulsion, " ORS 163.427
(1)(a)(B). In a decision issued the year after
petitioner's trial, we held that the element of
"subjected to forcible compulsion" common to the
offenses of first-degree rape and first-degree sexual abuse
"necessarily requires a culpable mental state."
State v. Nelson, 241 Or.App. 681, 688, 251 P.3d 240
(2011), rev dismissed as improvidently allowed, 354
Or. 62 (2012) (internal quotation marks omitted). Because the
trial court in Nelson had refused to give the
defendant's proposed jury instruction correctly stating
that rule, we reversed the defendant's convictions.
Id. at 689. We have subsequently held-in cases
involving trials held after Nelson-that the failure
"to instruct the jury that, to convict, it must
determine that the state has proved beyond a reasonable doubt
that defendant acted with a culpable mental state in
subjecting the victim to forcible compulsion" is a legal
error that is "obvious" and "not reasonably in
dispute"; in other words, plain error. State v.
Gray, 261 Or.App. 121, 130, 322 P.3d 1094 (2014);
see also State v. Waldbillig, 282 Or.App. 84, 89-90,
386 P.3d 51 (2016), rev den, 361 Or. 350 (2017)
(finding the failure to instruct on a culpable mental state
for forcible compulsion was plain error and listing other
cases holding the same); ORAP 5.45(1) (stating the
requirements for plain error review).
Nelson and the cases following it have made clear,
the jury must be instructed that, to convict a defendant of
first-degree rape or first-degree sexual abuse under a theory
of forcible compulsion, the state must prove beyond a
reasonable doubt that the defendant acted with a culpable
mental state in subjecting the victim to forcible compulsion.
But, in this case, petitioner's trial occurred before our
decision in Nelson. Nonetheless, petitioner argues
(as he did at the post-conviction trial) that his attorneys
were deficient because any reasonable defense attorney would
have requested the instruction even before Nelson.
We need not decide, however, [291 Or. ...