Guardado v. Kelly

• Decision Date: 17 May 2023
• Docket Number: A176893
• Citation: 326 Or. App. 90
• Parties: JUAN JOSE GUARDADO, Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

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326 Or.App. 90

JUAN JOSE GUARDADO, Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A176893

Court of Appeals of Oregon

May 17, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted April 19, 2023

Marion County Circuit Court19CV24496;A176893Claudia M. Burton Senior Judge.

Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erica L. Herb, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

Petitioner appeals a judgment denying his petition for post-conviction relief.He raises two assignments of error, advancing a combined argument that his trial counsel was ineffective for failing to argue-through (1) a jury instruction or (2) a motion for judgment of acquittal-that, under ORS 163.427(1)(a)(C)(first-degree sexual abuse), the state must prove not simply that the victim was "incapable of consent" but must prove that petitionerknew that the victim was "incapable of consent."Petitioner contends that his trial counsel should have raised those points at trial, because the Supreme Court had not decided whether the "incapable of consent" element of first-degree sexual abuse requires proof of a defendant's knowledge, and trial counsel had a duty "to raise legal issues that are unsettled."Reviewing the postconviction court's denial of relief for legal error, Cartrette v. Nooth,284 Or.App. 834 840, 395 P.3d 627(2017), we affirm.

To succeed on a claim of inadequate assistance of counsel, under Oregon law, a petitioner must prove by a preponderance of the evidence that "his or her trial counsel failed to exercise reasonable professional skill and judgment and that because of that failure, the petitioner suffered prejudice."Pereida-Alba v. Coursey,356 Or. 654, 661-62, 342 P.3d 70(2015).Similarly, "under federal law, a petitioner must establish that counsel's performance was deficient and that the deficient performance prejudiced the defense."Id. at 662(internal quotation marks omitted).The state and federal standards are "functionally equivalent."Johnson v. Premo,361 Or. 688, 699, 399 P.3d 431(2017).Additionally, "[a]petitioner relying solely on arguments about the state of the law can prevail on such a theory of inadequate assistance only if the state of the law was so obviously ambiguous that any lawyer exercising reasonable professional skill and judgment necessarily would have seen it."Jackson v. Franke,369 Or. 422, 434, 507 P.3d 222(2022)(internal quotation marks omitted).

Here as to whether trial counsel exercised reasonable professional skill and judgment, under relevant case law, a defendant's knowledge is not a component of the "incapable of consent" element: In State v. Phelps,141 Or.App. 555, 920 P.2d 1098, rev den,324 Or. 306(1996), we examined the "incapable of consent" element of first-degree rape, ORS 163.375, and we held that "[i]t is clear *** that the legislature did not intend to require the state to prove that defendant acted with a culpable mental state with regard to whether the victim lacked the mental capacity to consent."Phelps,141 Or.App. at 558;see alsoState v. Woods,317 Or.App. 506, 513, 505 P.3d 432, rev den,370 Or. 198(2022)("Under Phelps,the trial court in this case did not err by...