Jackson v. Franke

Decision Date03 June 2020
Docket NumberA152333
Citation467 P.3d 779,304 Or.App. 503
Parties Melton J. JACKSON, Jr., Petitioner-Appellant, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
CourtOregon Court of Appeals

Andy Simrin filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

AOYAGI, J.

This case comes to us on remand from the Supreme Court. In 2001, petitioner was convicted of first-degree sodomy. He petitioned for post-conviction relief, claiming, as relevant here, that his trial counsel was constitutionally inadequate and ineffective for failing to object when a doctor who had examined the child victim testified to a diagnosis of "highly concerning for sexual abuse." Eight years after petitioner's trial, the Supreme Court decided State v. Southard , 347 Or. 127, 218 P.3d 104 (2009), holding that, absent physical evidence of abuse, such testimony is inadmissible under OEC 403. It extended that holding the following year in State v. Lupoli , 348 Or. 346, 234 P.3d 117 (2010), indicating that such testimony is also improper vouching. In petitioner's view, those developments in the law were foreseeable at the time of his trial, such that his trial counsel performed deficiently in failing to object to the doctor's testimony. The post-conviction court denied relief. We affirmed on the basis that petitioner had not established prejudice. On review, the Supreme Court reversed on that issue and remanded for consideration of the other issues that we had not reached in our first opinion. Having considered the remaining issues, we again affirm.

I. PROCEDURAL FACTS

In May 2001, a grand jury indicted petitioner on one count of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427. The alleged victim was petitioner's minor son, M.

Petitioner waived his right to a jury and was tried to the court in September 2001. The case was a classic credibility contest between petitioner and his son, as there were no eyewitnesses to any abuse. In that context, the prosecution sought to bolster its case by introducing evidence from Dr. Steinberg, a pediatrician with CARES Northwest who had examined M in June 2001. Steinberg testified that she did not find any physical evidence of abuse in her examination but that, based on interviewing M and reviewing his medical, social, and behavioral history, she had made a medical diagnosis of "highly concerning for sexual abuse."

Defense counsel did not object to Steinberg's testimony. For the defense case, petitioner testified on his own behalf, denying any inappropriate sexual contact with his son. After hearing all of the evidence, the trial court found petitioner guilty of first-degree sodomy. It acquitted him of the other two charges.

Petitioner appealed the resulting judgment of conviction. We affirmed without opinion, and the Supreme Court denied review. State v. Jackson , 208 Or. App. 757, 145 P.3d 1145 (2006), rev. den. , 342 Or. 473, 155 P.3d 51 (2007).

Petitioner petitioned for post-conviction relief, raising numerous claims, including identifying 24 ways that his trial counsel allegedly provided inadequate assistance of counsel in violation of Article I, section 11, of the Oregon Constitution and ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. One of those claims—identified as claim 16(j)—was that "[c]ounsel failed to object to a diagnosis relating to sexual abuse in the absence of physical corroborating evidence." As discussed more later, to prevail on a claim for inadequate or ineffective assistance of counsel, a post-conviction petitioner must prove both that his counsel's performance was constitutionally deficient and that he suffered prejudice as a result. Montez v. Czerniak , 355 Or. 1, 6-7, 322 P.3d 487 (2014).

The superintendent moved for summary judgment on claim 16(j), and petitioner cross-moved for summary judgment on the same claim. Petitioner submitted multiple affidavits in support of his motion, some of which the superintendent moved to strike. The post-conviction court struck four affidavits—Exhibits 12, 13, 14, and 24—all affidavits of Oregon attorneys that petitioner contended were relevant to the prevailing norms for competent criminal defense attorneys at the time of petitioner's trial. The court then granted the superintendent's motion for summary judgment and denied petitioner's cross-motion for summary judgment. The court concluded that trial counsel did not perform deficiently in failing to object to Steinberg's testimony, given the state of the law in 2001, and that, in any event, petitioner's theory of prejudice was too speculative to prevail. After the resolution of claim 16(j) on summary judgment, petitioner's remaining claims were tried. The post-conviction court denied relief on all claims.

Petitioner appeals the denial of post-conviction relief, raising 203 assignments of error. In assignments of error 1 to 200, he contends that the post-conviction court erred in striking Exhibits 12, 13, 14, and 24 from the summary judgment record. In assignment of error 201, he contends that the post-conviction court erred in granting summary judgment to the superintendent on claim 16(j). In assignment of error 202, he contends that the post-conviction court erred in denying summary judgment to him on claim 16(j). Finally, in assignment of error 203, he contends that the post-conviction court erred in denying post-conviction relief on six other claims unrelated to claim 16(j).

We previously affirmed the post-conviction judgment in Jackson v. Franke , 284 Or. App. 1, 392 P.3d 328 (2017), rev'd , 364 Or. 312, 434 P.3d 350 (2019). In doing so, we reached only assignments of error 201, 202, and 203. Regarding assignments of error 201 and 202, we held that the post-conviction court had not erred in ruling as it did on claim 16(j), because petitioner had "failed to present any evidentiary or legal basis supporting a determination that he was prejudiced by his attorney's failure to object to Steinberg's diagnosis of sexual abuse." Id . at 15-16, 392 P.3d 328. "Because we conclude[d] that petitioner [had] failed to create a genuine dispute of material fact regarding prejudice, we [did] not address whether he came forward with sufficient evidence that his lawyer performed inadequately." Id . at 2 n. 2, 392 P.3d 328. We also did not need to "address whether the post-conviction court erred when it excluded the affidavits." Id . As for assignment of error 203, we rejected that assignment on the merits without written discussion. Id . at 2 n. 1, 392 P.3d 328.

On review, the Supreme Court reversed as to assignments of error 201 and 202. Jackson v. Franke , 364 Or. 312, 434 P.3d 350 (2019).1 The court limited its opinion to the "narrow issue" of prejudice, concluding that petitioner had sufficiently established prejudice to be entitled to partial summary judgment on that prong of claim 16(j). Id . at 331, 434 P.3d 350. Specifically, the court concluded that, given the timing of petitioner's appeal relative to when Southard was accepted for review and decided, "there was more than a mere possibility that, if the issue had been preserved and adequately presented, [the Supreme Court] would have allowed review and reversed his conviction," which was all that was needed to establish prejudice. Id . (emphasis added). In so concluding, the court recognized that it was relying on the "tremendous advantage" of hindsight. Id . at 327, 434 P.3d 350 ("[I]n evaluating the prejudice prong, we have one tremendous advantage: hindsight.").

Having decided the prejudice issue, the Supreme Court remanded the case to us to consider the issues and assignments of error that we did not reach the first time, "including whether petitioner's trial counsel's failure to object fell below constitutionally required standards and whether the post-conviction court erred in excluding affidavits potentially relevant to that question." Id . at 331, 434 P.3d 350. The Supreme Court expressed no opinion on those issues. See id . at 321, 434 P.3d 350 (describing prejudice as the "only issue" before it, and "assum[ing]—without deciding" deficient performance); id . at 319 n. 4, 434 P.3d 350 (not considering assignments of error 1-200, because the affidavits relate to "the inadequate performance element, rather than prejudice element"). Indeed, as to the performance issue, the court emphasized the important temporal difference in how performance and prejudice are assessed, presumably to stave off any suggestion that its prejudice holding was also dispositive of the performance issue: "We emphasize that, while the prejudice prong may be informed by events that occurred after petitioner's trial, that determination is separate from the assessment of whether trial counsel's performance fell below the standard of reasonable exercise of professional skill and judgment," because counsel's effectiveness is "determined in light of the law and the views and conduct of competent counsel as they existed at the time the attorney acted or failed to act," whereas prejudice is "determined in hindsight." Id . at 327 n. 9, 434 P.3d 350 (emphasis in original).

Thus, this appeal is now before us for the second time, to address whether the post-conviction court erred in (1) striking Exhibits 12, 13, 14, and 24, and (2) ruling on summary judgment that, given the state of the law in Oregon in 2001, petitioner's trial counsel did not render constitutionally deficient performance by not objecting to Steinberg's testimony.

II. RELEVANT LEGAL...

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5 cases
  • Jackson v. Franke
    • United States
    • Oregon Supreme Court
    • March 31, 2022
    ...and reversed his conviction." Id. at 331, 434 P.3d 350.On remand, the Court of Appeals again affirmed. Jackson v. Franke , 304 Or. App. 503, 467 P.3d 779 (2020) ( Jackson IV ). The court first addressed whether the excluded lawyer affidavits were even potentially relevant. Id. at 510-515, 4......
  • Jackson v. Franke
    • United States
    • Oregon Supreme Court
    • March 31, 2022
    ...would have allowed review and reversed his conviction." Id. at 331. On remand, the Court of Appeals again affirmed. Jackson v. Franke, 304 Or.App. 503, 467 P.3d 779 (2020) (Jackson IV). The court first addressed whether the excluded lawyer affidavits were even potentially relevant. Id. at 5......
  • Santa FE Natural Tobacco Co. v. Department of Revenue, TC 5372
    • United States
    • Oregon Tax Court
    • May 3, 2021
    ...constitutes legal analysis that is the province of the court and is not a proper subject for expert testimony. See Jackson v. Franke, 304 Or.App. 503, 512467 P3d 779 (2020), rev allowed' 367 Or. 220 (reviewing trial court's denial of criminal defendant's claim for post-conviction relief bas......
  • Santa FE Natural Tobacco Co. v. Department of Revenue
    • United States
    • Oregon Tax Court
    • May 3, 2021
    ...constitutes legal analysis that is the province of the court and is not a proper subject for expert testimony. See Jackson v. Franke, 304 Or.App. 503, 512467 P3d 779 (2020), rev allowed' 367 Or. 220 (reviewing trial court's denial of criminal defendant's claim for post-conviction relief bas......
  • Request a trial to view additional results

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