Oregon Appellate Ct - June 22, 2016
by: Aalvarez • June 23, 2016 • no comments
PCR – IAC - Standard for Determining Prejudice
The standard for determining ineffective assistance of counsel is whether there was a likelihood (more than a mere possibility but less than a probability) that counsel’s performance prejudiced the defense. Here, the state conceded that defense counsel was deficient but argued that the post-conviction court applied the wrong standard in finding prejudice and argued that the court should have determined whether the likelihood of a different result, but for counsel’s errors, was substantial. On appeal, the Court rejects the state’s formulation of the prejudice test, explaining that the correct standard does not require proof that but for counsel’s errors that there was a substantial likelihood of a different result. Rather, all the post-conviction court must find is that, in the absence of counsel’s errors, a different result at trial was possible. Baronovich v. Brockamp, 279 Or. App. 52, (2016)
SPO – Entry of SPO Improper Where Respondent Has Not Received Notice
The trial court erred in denying respondent’s motion to set aside a stalking protective order because, prior to the entry of the final stalking protective order, respondent had never been served with the petition nor had he been given any notice of the hearing. Because the respondent never received any notice of the hearing, the final stalking protective order was improper and respondent’s motion to set aside should have been granted. L.E.A. v. Taylor, 279 Or. App. 61 (2016)
Failure of the Trial Court to Sua Sponte Grant a Mistrial
A trial does not err in failing to grant a mistrial sua sponte where:
“(1) defendant and the state were aware that a juror had interjected extra-record material into deliberations; (2) the injection of that material arguably prejudiced the state more than defendant; (3) the offending juror’s comments reasonably suggested that he would vote to acquit; (4) the parties were invited to make a motion for a mistrial; (5) defendant was satisfied with the jury and wanted to proceed with that jury, notwithstanding the injection of extrarecord material; and (6) the state and victim also wanted to proceed, despite the risk of acquittal, rather than try the case a second time.”
