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Oregon Supreme Court—December 14, 2017

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by: Mary A. Sofia • December 20, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary A. Sofia, OCDLA


PCR—Inadequate Assistance of Counsel—Inadequate Investigation

Trial counsel rendered constitutionally inadequate representation by failing to conduct adequate investigation in preparation for dangerous-offender sentencing proceeding, which prejudiced petitioner.

The post-conviction court granted petitioner/defendant post-conviction relief on grounds that his defense counsel had rendered constitutionally inadequate representation during a presentence hearing concerning whether petitioner was a dangerous offender who suffered from "severe personality disorder," ORS 161.725(1)(s). Specifically, the post-conviction court concluded that defense counsel provided inadequate assistance by failing to (1) reasonably investigate and consult with an expert before determining that cross-examination of the state's psychiatrist alone was appropriate and (2) present testimony from a defense expert to rebut the psychiatrist's testimony that petitioner had an antisocial personality disorder.

The post-conviction court vacated petitioner's dangerous-offender sentence and remanded the case for resentencing. The Court of Appeals affirmed on the grounds that defense counsel was inadequate in failing to investigate and consult with an expert. On review, the state contends that the Court of Appeals erred because (1) defense counsel's tactical decision to rely on cross-examination without consulting an expert was reasonable and (2) petitioner did not show it was "reasonably probable" that he suffered prejudice. The Court affirms the post-conviction court's and Court of Appeals' conclusions that defense counsel failed to conduct an adequate investigation.

Although defense counsel knew that the state's psychiatrist would rely on petitioner's juvenile history to conclude that petitioner had a conduct disorder before age 15 and that the expert's diagnosis of petitioner as having an antisocial personality disorder was insufficiently supported by the information contained in the report, he did not decide to investigate petitioner's background to confirm or dispel the accuracy of that data or complete the record. That was inadequate in view of the markedly enhanced sentence petitioner faced during dangerous-offender sentencing proceeding. In view of the nature and complexity of the hearing, defense counsel's decision not to consult an expert concerning the state's diagnosis was also not a reasonable exercise of professional skill and judgment because the decision was not an informed one. The court also concludes that defense counsel's errors prejudiced him because, given the uses to which counsel could have put the information contained in a defense report, there is more than a mere possibility that that the jury could have rejected the state's contention that petitioner suffered from a severe personality disorder.

Richardson v. Belleque, 362 Or 236 (2017) (Nakamoto, J.)