Oregon Supreme Court - June 27, 2013

by: Zara Lukens and Abassos • June 28, 2013 • no comments

• PCR- Preponderance of the evidence required to establish prejudice as a result of inadequate counsel

PCR- Preponderance of the evidence required to establish prejudice as a result of inadequate counsel

Post-conviction relief petitioner did not establish that counsel’s failure to provide proper advice was prejudicial because:

(1) Petitioner did not meet the preponderance of the evidence standard.

(2) The trial court was entitled to conclude that petitioner’s assertion regarding what he would have done if presented with the correct advice did not make sense. Alternatively, assuming petitioner is correct that the objective reasonableness of what he would have is irrelevant, the post-conviction court was entitled to find that he was not a credible witness on that point.

(3) The post-conviction court correctly found that there was not sufficient evidence to establish that receipt of the correct advice would have changed petitioner’s behavior. Gable v. State, 353 Or. __ (June 27, 2013).