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

Supreme Court of Oregon

January 31, 2019

MELTON J. JACKSON, JR., Petitioner on Review,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Respondent on Review.

          Argued and submitted March 7, 2018.

          On review from the Court of Appeals (CC CV080485) (CA A152333) . [*]

Andy Simrin, Andy Simrin PC, Portland, argued the cause and fled the brief for petitioner on review.

          Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Nelson, and Garrett, Justices. [**]

         The decision of the Court of Appeals is reversed, and the matter is remanded to the Court of Appeals for further proceedings consistent with this opinion.

         [364 Or. 313] Case Summary:

         At petitioner's 2001 criminal trial, petitioner's counsel did not object to a doctor testifying to a medical diagnosis of sexual abuse, even though there was no physical evidence of abuse. In 2001, controlling case law from the Court of Appeals held that such testimony was admissible. In 2009, however, the Supreme Court held that that testimony was not admissible. Petitioner sought post-conviction relief, alleging that constitutionally adequate trial counsel would have objected to the doctor's testimony, and that the failure to object prejudiced him because it prevented him from petitioning the Supreme Court to review the Court of Appeals holding that such testimony was admissible. The post-conviction court denied petitioner relief, and the Court of Appeals affrmed solely on the ground that petitioner had not shown prejudice. The Court of Appeals concluded that the Supreme Court's complete discretion whether to allow a petition for review meant it was speculative whether a petition for review would have led the Supreme Court to grant petitioner any relief. Held: (1) Prejudice means a tendency to affect the result of the prosecution, and while it requires more than a mere possibility, it does not require probability; (2) the Supreme Court's complete discretion whether to allow a petition for review does not eliminate the need for courts to evaluate whether a timely petition might have led to relief; (3) courts should use available, objective criteria to evaluate whether the Supreme Court would have allowed a petition for review; (4) although it is uncertain whether the Supreme Court would have allowed a petition for review in petitioner's case, the objective criteria show more than a mere possibility it would have done so; (5) petitioner had thus made a showing of prejudice, and the matter must be returned to the Court of Appeals to consider whether trial counsel was, in fact, constitutionally inadequate.

         The decision of the Court of Appeals is reversed, and the matter is remanded to the Court of Appeals for further proceedings consistent with this opinion.

         [364 Or. 314] BALMER, J.

         Petitioner in this post-conviction proceeding was tried on charges of first-degree sexual abuse and first-degree sodomy in 2001. At trial, petitioner's counsel did not object to certain testimony, and controlling case law at that time from the Court of Appeals held that such testimony was admissible. In 2009, however, the Supreme Court held that that testimony was not admissible. In his post-conviction complaint, petitioner alleged that his trial counsel had failed to provide constitutionally adequate assistance and that he had been prejudiced as a result.

         The Court of Appeals affirmed the post-conviction court's grant of partial summary judgment against petitioner. Jackson v. Franke, 284 Or.App. 1, 392 P.3d 328 (2017). The court assumed that counsel exercising reasonable professional skill and judgment would have objected to the testimony so as to preserve the right to seek Supreme Court review of the existing Court of Appeals case law. Even so, the Court of Appeals concluded, petitioner had not been prejudiced. The Court of Appeals decision turned on its conclusion that, as a factual matter, the chance that the Supreme Court would have allowed review in petitioner's case and ruled in his favor was too small for him to demonstrate prejudice, which requires a petitioner to demonstrate that counsel's deficiency had "a tendency to affect the result of the prosecution," a standard that we explained "demands more than mere possibility, but less than probability." Green v. Franke, 357 Or. 301, 321-22, 350 P.3d 188 (2015).

         We allowed petitioner's petition for review. We address only the prejudice aspect of petitioner's claim. Although we agree with the Court of Appeals' statement of the applicable test, as outlined in Green, we disagree with its application of the test, for reasons we describe below. In our view, it is not appropriate, or workable as a matter of judicial decision-making, to speculate as to how individual members of the Supreme Court would have viewed a petition for review in petitioner's case, as the post-conviction court suggested, see Jackson, 284 Or.App. at 9 (quoting post-conviction court ruling). Nor is it correct to conclude, as the [364 Or. 315] Court of Appeals did, that because of this court's "complete discretion" regarding whether or not to allow petitions for review, any assessment of the likelihood that such a petition by petitioner would have been allowed would be "nothing but speculation." Id. at 12-13. Rather, we hold that the test for prejudice under Green requires, in this context as in others, that petitioner show that his lawyer's deficiency had "a tendency to affect the result of the prosecution." 357 Or at 321. Here, that inquiry includes an evaluation of whether a petition for review would have been allowed in petitioner's case, using available, objective criteria. As we discuss below, although it is uncertain whether this court would have allowed a petition for review from petitioner, there is "more than mere possibility." Id. at 322. Given that conclusion, the alleged constitutional inadequacy of his trial counsel, which blocked his appellate counsel from the opportunity to raise the issue on appeal and subsequently in a petition for review, was prejudicial. We remand for the Court of Appeals to consider other issues relating to whether, in fact, the actions of petitioner's trial counsel here fell below constitutionally required standards.

         I. LEGAL BACKGROUND AND FACTS

         A. Brief Overview of Legal Standards

         The issue before us involves whether petitioner's counsel at his criminal trial provided inadequate assistance of counsel under the Oregon Constitution (Article I, section 11), or ineffective assistance of counsel under the United States Constitution (the Sixth Amendment, made applicable to the states by the Fourteenth Amendment). While the federal and state constitutional provisions are interpreted independently, this court has explained that they are functionally equivalent, Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons, 355 Or. 598, 330 P.3d 595 (2014) (so explaining), [1] and the elements of proving constitutionally inadequate assistance of counsel are essentially the same under both constitutions.

         [364 Or. 316] Under the Oregon Constitution, a claim of constitutionally inadequate counsel requires a post-conviction petitioner to show two elements: (1) that trial counsel had failed to exercise reasonable professional skill and judgment, and (2) that that failure "had a tendency" to affect the result of the trial. See, e.g., Green, 357 Or at 312; Montez, 355 Or at 7. The burden is on the post-conviction petitioner to show both elements. Green, 357 Or at 312; Montez, 355 Or at 7.

         B. Proceedings in the Underlying Criminal Case

         The post-conviction court granted the state's motion for partial summary judgment against petitioner on his claim that his trial counsel had been inadequate in failing to raise the evidentiary objection at issue here and denied petitioner's cross motion for summary judgment on that claim. The facts necessary to resolve the narrow issue before this court are undisputed, and we take them from the record and decisions below.

         Petitioner was indicted in May of 2001 for first-degree sodomy and two counts of first-degree sexual abuse, based on conduct involving M, one of petitioner's three minor children. The charges arose from M's disclosures of abuse after he and his siblings had been placed in the foster home of Gillette. Gillette's mother discovered M, who was approximately 10 at the time, engaged in sexualized behavior with Gillette's son. When Gillette questioned M about it, M told her that petitioner had made M touch him and had sodomized him. Gillette reported the matter to police.

         Petitioner was represented at trial by Jonasson. While Jonasson had been appointed only three weeks before the scheduled trial date, petitioner refused to permit Jonasson to seek an extension of time. Petitioner waived the right to a jury, and the case was tried to the court.

         One of the witnesses for the state at the trial was Dr. Steinberg, a pediatrician with CARES Northwest who specializes in (among other things) child abuse, and who had examined M. Steinberg testified that she had found no physical evidence of abuse. However, based on Steinberg's interviews with M and her review of M's medical, social, and behavioral history, Steinberg stated that her "medical [364 Or. 317] diagnosis" "was highly concerning for sexual abuse." Jonasson did not object to Steinberg's testimony regarding her medical diagnosis. Jonasson knew that Steinberg's testimony "would carry great weight with the factfinder," but he "could not think of any possible objection to her diagnosis."

         At that time, the Court of Appeals had issued a plurality opinion holding that a medical diagnosis of sexual abuse was admissible, without suggesting that physical evidence was a necessary precondition. State v. Trager, 158 Or.App. 399, 974 P.2d 750, rev den, 329 Or. 358 (1999). In Trager, the Court of Appeals had decided the case en banc. While all the judges had agreed the evidence was admissible, they had divided over whether the evidence was "scientific evidence" that required a particular foundation.[2] This court later denied review in Trager, but one justice would have allowed review. Trager, 329 Or. 358 (Durham, J., would allow).

         Jonasson did not know about Trager. Thus, he also was not aware that the Trager court had split en banc, or that, when the defendant in that case petitioned for review, one justice of the Supreme Court had voted to allow review. Nor was he aware that attorneys at the Office of Public Defense Services believed that Trager was wrongly decided and continued to encourage ...


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.