Submitted March 22, 2018.
Malheur County Circuit Court 1405841P. Burdette Pratt, Senior
Peterson and O'Connor Weber LLC filed the brief for
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Rebecca M. Auten, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Or.App. 525] PER CURIAM
who was required to wear an electronic restraint device at
his criminal trial, appeals from a judgment denying
post-conviction relief on his claim that his trial counsel
was inadequate and ineffective for not objecting to the use
of the electronic restraint or requiring that a record be
made to justify the use of the restraint. He raises two
assignments of error. In the first, he contends that the
post-conviction court erred when it concluded that he was not
entitled to relief absent a showing of actual prejudice.
However, as petitioner recognizes, that contention is
foreclosed by Sproule v. Coursey, 276 Or.App. 417,
367 P.3d 946, rev den, 359 Or. 777 (2016).
Petitioner contends that Sproule was wrongly decided
and should be overruled; we are not persuaded. In the second
assignment of error, he asserts that the post-conviction
court erred when it admitted the affidavit of Corporal Bruce.
Having considered the affidavit and the parties'
arguments, we disagree.
Lincoln County grand jury charged petitioner with a multitude
of serious felonies. For two weeks in January 2011,
petitioner was tried before a jury on those charges.
Throughout that trial, petitioner was shackled. Not in old
fashioned chains or irons, but by wearing under his clothing
a "Band-It, " an electro-shock restraint device,
commonly, though somewhat inaccurately, referred to as a stun
belt. The decision to shackle petitioner throughout trial did
not come following a hearing, at which the state would have
presented evidence of petitioner's particular safety
risk, or his history of violence, or his intent to disrupt
the court decorum. Rather, the record reveals that petitioner
wore the device because, pursuant to a local court order, all
incarcerated criminal defendants in Lincoln County wore such
a device at trial when appearing in civilian clothing.
Petitioner's trial attorney offered no objection.
sought post-conviction relief, arguing that his trial
attorney was constitutionally inadequate and ineffective in
failing to object to his shackling. In support [292 Or.App.
526] of his claim, petitioner testified that the device
affected his thought process throughout trial. Petitioner
testified, in part:
"While I was in jail, about a month before trial, I saw
one of the guys in jail get tazed. The inmate got stiff, fell
to the ground, hit his head, and urinated himself in front of
everyone. *** When they had me sign the notice and wear the
shock restraint device, I thought back to that guy in the
jail and I was scared. I was afraid that I'd get shocked
and pee myself in front of everyone."
post-conviction court found all of petitioner's
statements noncredible, finding:
"The testimony of his attorney and the district attorney
as well as the transcript of the trial reflects that
Petitioner testified at length and in great detail and that
there was no evidence of reluctance or inhibition. * * *
Petitioner was also actively engaged in conversation with the
deputies and others during breaks. There was no indication
that he was nervous, subdued or apprehensive. ***
Petitioner's claim that he was terrified that the device
would accidently be activated is likewise not credible. He
was advised of what type of actions could result in
activation of the device. The switch on the deputy's belt
had a safety guard and required insertion of the finger to
activate the switch. Had Petitioner actually been fearful
about the possibility of accidental activation of the
security devise one would expect him to mention it to his
attorney at some point during the multi-day trial."
the post-conviction court denied relief, concluding that
petitioner's trial counsel's failure to object to the
shackling was not constitutionally deficient performance, and
that, even if it were, petitioner had not established
prejudice as a result of the shackling, because the court
found petitioner's testimony not credible on that point.
In determining that defense counsel's failure to object
was not deficient, the post-conviction court reasoned that
"[t]he case of State v. Wall, [252 Or.App. 435');">252 Or.App. 435,
287 P.3d 1250 (2012), rev den, 353 Or. 280 (2013)]
*** was not decided until after the Petitioner's trial
took place. *** Petitioner's attorney was not ineffective
for not anticipating the Wall decision." As to
the issue of prejudice, the post-conviction court reasoned,
"Where a non-visible security device is used at trial,
prejudice is not presumed."
Or.App. 527] In this per curiam opinion, we affirm the
postconviction court's denial of relief, relying on our
decision in Sproule v. Coursey, 276 Or.App. 417, 367
P.3d 946, rev den, 359 Or. 777 (2016). In
Sproule, relying on our decision in Bates,
we noted that there were three types of prejudice as a result
of shackling: "'(1) impingement on the presumption
of innocence and the dignity of judicial proceedings; (2)
inhibition of the accused's decision whether to take the
stand as a witness; and (3) inhibition of the accused's
consultation with his or her attorney'" 276 Or.App.
at 424 (quoting State v. Bates, 203 Or.App. 245,
251, 125 P.3d 42 (2005), rev den, 340 Or. 483
drew a distinction, however, as to when prejudice would be
presumed and when prejudice would need to be established by a
"Thus, where the record shows that a criminal defendant
was restrained in a manner that could not be effectively
shielded from the jury's view, there is a presumption
that the shackles are seen by the jury and prejudice results.
"In contrast, if a defendant is restrained in a manner
that is not visible to the jury, prejudice will not ...