Jackson v. Franke

• Decision Date: 01 March 2017
• Docket Number: A152333
• Citation: 392 P.3d 328,284 Or.App. 1
• Parties: Melton J. JACKSON, Jr., Petitioner-Appellant, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

284 Or.App. 1
392 P.3d 328

Melton J. JACKSON, Jr., Petitioner-Appellant,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A152333

Court of Appeals of Oregon.

Argued and submitted April 13, 2015.
March 1, 2017

Andy Simrin argued the cause and filed the briefs for appellant.

Kathleen Cegla, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.^*

HADLOCK, C. J.

284 Or.App. 2

In this post-conviction proceeding, petitioner challenged, among other things, the adequacy of legal representation he received in conjunction with his underlying criminal trial, in which he was convicted of first-degree sodomy. One of petitioner's inadequate-assistance claims was based on his lawyer's failure to object to a diagnosis of sexual abuse in the absence of physical corroborating evidence.¹ Petitioner assigns error to the post-conviction court's grant of the defendant superintendent's motion for partial summary judgment, and to the denial of petitioner's cross-motion for partial summary judgment, on that claim. We conclude that petitioner failed to present sufficient evidence, in the context of the cross-motions for summary judgment, to create a genuine dispute regarding whether he was prejudiced by counsel's failure to object to the sexual-abuse diagnosis. Accordingly, the court did not err in granting the superintendent's motion for

392 P.3d 330

summary judgment and denying petitioner's cross-motion for summary judgment.² We therefore affirm the judgment denying petitioner post-conviction relief.

I. LEGAL STANDARDS AND STANDARD OF REVIEW

Post-conviction relief is warranted when there has been a "substantial denial" of "rights under the Constitution of the United States, or under the Constitution of the State

284 Or.App. 3

of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1)(a). A criminal defendant is guaranteed the right to adequate counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Montez v. Czerniak , 355 Or. 1, 6, 322 P.3d 487, adh'd to as modified on recons , 355 Or. 598, 330 P.3d 595 (2014) ; Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (United States Constitution requires the "effective" assistance of counsel). The test for determining whether a petitioner has been denied adequate assistance of counsel, under both the state and federal constitutions, is two-pronged: First, the petitioner must show that his or her counsel performed inadequately. Second, the petitioner must demonstrate that he or she was prejudiced as a result of counsel's error. Pereida-Alba v. Coursey , 356 Or. 654, 661-62, 342 P.3d 70 (2015) ; Strickland , 466 U.S. at 688, 104 S.Ct. 2052. "The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2).

"When reviewing rulings on cross-motions for summary judgment, we review the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Ajir v. Buell , 270 Or.App. 575, 578, 348 P.3d 320 (2015) (internal quotation marks omitted); see also Putnam v. Angelozzi , 278 Or.App. 384, 388, 374 P.3d 994 (2016) (in reviewing a grant of summary judgment to the defendant superintendent in a post-conviction case, we "determine whether the court correctly concluded that there are no genuine issues of material fact and that [the] defendant was entitled to judgment as a matter of law"); ORCP 47 C.

II. THE FACTS AND PROCEDURAL HISTORY

A. The Underlying Criminal Proceedings

In September 2001, petitioner was convicted, after a trial before the court, of one count of first-degree sodomy.³ The victim of that crime is petitioner's biological son, M.

284 Or.App. 4

M had been living in a motel in Vancouver, Washington, with his older siblings, B and N, petitioner, and petitioner's girlfriend. One day, while petitioner was at work, police came to the hotel and arrested petitioner's girlfriend on an unrelated charge. M and his siblings were taken into protective custody and placed in the foster home of Gillette.

In December 2000, when M was ten years old, he visited Gillette's mother, Garden. After Garden observed M touching Gillette's son inappropriately, M began to sob. He disclosed to Garden that petitioner had touched him like that before. Garden informed Gillette, who asked M what had happened between him and petitioner. M told Gillette that petitioner had made M touch him and that petitioner had sodomized him. Gillette relayed M's account to N, and asked N to speak with M. N testified that, when she asked M what had happened, he told her

392 P.3d 331

that petitioner "had stuck his penis in [M's] butt."

Gillette reported the incident to the police and an investigation was initiated. In June 2001, M was examined by Dr. Steinberg, a pediatrician with CARES Northwest who specializes in the areas of child abuse and neglect, and developmental disabilities. Steinberg conducted a physical examination of M and found no physical signs of abuse. After the physical examination was complete, Steinberg spoke briefly with M and asked M if anyone had ever yelled at him, hurt him, or touched his "private parts." M replied, "My dad did." During a subsequent interview, M indicated that, when he was six years old, petitioner had sodomized him and threatened to kill him if he told anyone about it. After considering M's medical, social, and behavioral history, the physical examination, and M's statements and demeanor during the interview, Steinberg reached a "medical diagnosis [that] was highly concerning for sexual abuse." Steinberg testified at trial about the examination and diagnosis. Defense counsel did not object to the admission of Steinberg's testimony.

Petitioner appealed his judgment of conviction, and we affirmed without written opinion. State v. Jackson , 208 Or.App. 757, 145 P.3d 1145 (2006), rev. den. , 342 Or. 473, 155 P.3d 51 (2007).

284 Or.App. 5

B. The Post-Conviction Proceedings

Petitioner sought post-conviction relief, alleging, among other things, that his trial attorney provided constitutionally inadequate assistance under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. One of petitioner's allegations was that counsel was inadequate for failing to object to Steinberg's diagnosis of sexual abuse in the absence of physical corroborating evidence. With regard to that allegation, the superintendent filed a motion for partial summary judgment and petitioner filed a cross-motion for partial summary judgment. After a joint hearing on the summary judgment motions, the court granted the superintendent's motion and denied petitioner's motion.

In support of his motion for partial summary judgment, the superintendent argued that petitioner had failed to establish that counsel performed inadequately by not objecting to Steinberg's testimony because, at the time of petitioner's trial in 2001, "it was not an error to admit an expert's testimonial diagnosis of child sexual abuse." The superintendent argued that no Oregon appellate court had ruled otherwise. He pointed to State v. Sanchez-Cruz , 177 Or.App. 332, 346, 33 P.3d 1037 (2001), rev. den. , 333 Or. 463, 42 P.3d 1245 (2002), in which we held that "the probative value of [a sexual abuse] diagnosis was not substantially outweighed by any of the reasons against admission in OEC 403." The superintendent contended that it was not until the Supreme Court issued State v. Southard , 347 Or. 127, 218 P.3d 104 (2009), that diagnoses of sexual abuse absent physical evidence of abuse were deemed inadmissible under OEC 403.

The superintendent argued that Southard and its progeny should not apply retroactively to inadequate-assistance claims for which the underlying convictions occurred before October 1, 2009, the date on which Southard issued. The superintendent explained that an attorney's performance should be evaluated based on the state of the law at the time of the trial, and that counsel " ‘need not be clairvoyant.’ " (Quoting Umberger v. Czerniak , 232 Or.App. 563, 565, 222 P.3d 751 (2009), rev. den. , 348 Or. 13, 227 P.3d 1172 (2010).) Relying largely on Umberger and Balogh v. Howton , 233 Or.

284 Or.App. 6

App. 614, 227 P.3d 757, rev. den. , 348 Or. 461, 234 P.3d 983 (2010), two per curiam opinions in which we held that attorneys were not inadequate for failing to object to sexual-abuse diagnoses before Southard , the superintendent argued that he was entitled to summary judgment on the related...