Jackson v. Franke

• Decision Date: 31 January 2019
• Docket Number: CC CV080485 (CA A152333) (SC S064876)
• Parties: Melton J. JACKSON, Jr., Petitioner on Review, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Respondent on Review.
• Court: Oregon Supreme Court

364 Or. 312

434 P.3d 350

Melton J. JACKSON, Jr., Petitioner on Review,

v.Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Respondent on Review.

CC CV080485 (CA A152333) (SC S064876)

Supreme Court of Oregon.

Argued and submitted March 7, 2018.

January 31, 2019

Andy Simrin, Andy Simrin PC, Portland, argued the cause and filed the brief for petitioner on review.

Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Nelson, and Garrett, Justices.^**

BALMER, J.

Petitioner in this post-conviction proceeding was tried on charges of first-degree sexual abuse and first-degree sodomy in 2001. At trial, petitioner’s counsel did not object to certain testimony, and controlling case law at that time from the Court of Appeals held that such testimony was admissible. In 2009, however, the Supreme Court held that that testimony was not admissible. In his post-conviction complaint, petitioner alleged that his trial counsel had failed to provide constitutionally adequate assistance and that he had been prejudiced as a result.

The Court of Appeals affirmed the post-conviction court’s grant of partial summary judgment against petitioner. Jackson v. Franke , 284 Or. App. 1, 392 P.3d 328 (2017). The court assumed that counsel exercising reasonable professional skill and judgment would have objected to the testimony so as to preserve the right to seek Supreme Court review of the existing Court of Appeals case law. Even so, the Court of Appeals concluded, petitioner had not been prejudiced. The Court of Appeals decision turned on its conclusion that, as a factual matter, the chance that the Supreme Court would have allowed review in petitioner’s case and ruled in his favor was too small for him to demonstrate prejudice, which requires a petitioner to demonstrate that counsel’s deficiency had "a tendency to affect the result of the prosecution," a standard that we explained "demands more than mere possibility, but less than probability." Green v. Franke, 357 Or. 301, 321-22, 350 P.3d 188 (2015).

We allowed petitioner’s petition for review. We address only the prejudice aspect of petitioner’s claim. Although we agree with the Court of Appeals' statement of the applicable test, as outlined in Green , we disagree with its application of the test, for reasons we describe below. In our view, it is not appropriate, or workable as a matter of judicial decision-making, to speculate as to how individual members of the Supreme Court would have viewed a petition for review in petitioner’s case, as the post-conviction court suggested, see Jackson, 284 Or. App. at 9, 392 P.3d 328 (quoting post-conviction court ruling). Nor is it correct to conclude, as the Court of Appeals did, that because of this court’s "complete discretion" regarding whether or not to allow petitions for review, any assessment of the likelihood that such a petition by petitioner would have been allowed would be "nothing but speculation." Id . at 12-13, 392 P.3d 328. Rather, we hold that the test for prejudice under Green requires, in this context as in others, that petitioner show that his lawyer’s deficiency had "a tendency to affect the result of the prosecution." 357 Or. at 321, 350 P.3d 188. Here, that inquiry includes an evaluation of whether a petition for review would have been allowed in petitioner’s case, using available, objective criteria. As we discuss below, although it is uncertain whether this court would have allowed a petition for review from petitioner, there is "more than mere possibility." Id. at 322, 350 P.3d 188. Given that conclusion, the alleged constitutional inadequacy of his trial counsel, which blocked his appellate counsel from the opportunity to raise the issue on appeal and subsequently in a petition for review, was prejudicial. We remand for the Court of Appeals to consider other issues relating to whether, in fact, the actions of petitioner’s trial counsel here fell below constitutionally required standards.

I. LEGAL BACKGROUND AND FACTS

A. Brief Overview of Legal Standards

The issue before us involves whether petitioner’s counsel at his criminal trial provided inadequate assistance of counsel under the Oregon Constitution (Article I, section 11 ), or ineffective assistance of counsel under the United States Constitution (the Sixth Amendment, made applicable to the states by the Fourteenth Amendment). While the federal and state constitutional provisions are interpreted independently, this court has explained that they are function-ally equivalent, Montez v. Czerniak , 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014) (so explaining),¹ and the elements of proving constitutionally inadequate assistance of counsel are essentially the same under both constitutions.

Under the Oregon Constitution, a claim of constitutionally inadequate counsel requires a post-conviction petitioner to show two elements: (1) that trial counsel had failed to exercise reasonable professional skill and judgment, and (2) that that failure "had a tendency" to affect the result of the trial. See, e.g. , Green , 357 Or. at 312, 350 P.3d 188 ; Montez , 355 Or. at 7, 322 P.3d 487. The burden is on the post-conviction petitioner to show both elements. Green , 357 Or. at 312, 350 P.3d 188 ; Montez , 355 Or. at 7, 322 P.3d 487.

B. Proceedings in the Underlying Criminal Case

The post-conviction court granted the state’s motion for partial summary judgment against petitioner on his claim that his trial counsel had been inadequate in failing to raise the evidentiary objection at issue here and denied petitioner’s cross motion for summary judgment on that claim. The facts necessary to resolve the narrow issue before this court are undisputed, and we take them from the record and decisions below.

Petitioner was indicted in May of 2001 for first-degree sodomy and two counts of first-degree sexual abuse, based on conduct involving M, one of petitioner’s three minor children. The charges arose from M’s disclosures of abuse after he and his siblings had been placed in the foster home of Gillette. Gillette’s mother discovered M, who was approximately 10 at the time, engaged in sexualized behavior with Gillette’s son. When Gillette questioned M about it, M told her that petitioner had made M touch him and had sodomized him. Gillette reported the matter to police.

Petitioner was represented at trial by Jonasson. While Jonasson had been appointed only three weeks before the scheduled trial date, petitioner refused to permit Jonasson to seek an extension of time. Petitioner waived the right to a jury, and the case was tried to the court.

One of the witnesses for the state at the trial was Dr. Steinberg, a pediatrician with CARES Northwest who specializes in (among other things) child abuse, and who had examined M. Steinberg testified that she had found no physical evidence of abuse. However, based on Steinberg’s interviews with M and her review of M’s medical, social, and behavioral history, Steinberg stated that her "medical diagnosis" "was highly concerning for sexual abuse." Jonasson did not object to Steinberg’s testimony regarding her medical diagnosis. Jonasson knew that Steinberg’s testimony "would carry great weight with the factfinder," but he "could not think of any possible objection to her diagnosis."

At that time, the Court of Appeals had issued a plurality opinion holding that a medical diagnosis of sexual abuse was admissible, without suggesting that physical evidence was a necessary precondition. State v. Trager , 158 Or. App. 399, 974 P.2d 750, rev. den. , 329 Or. 358, 994 P.2d 125 (1999). In Trager , the Court of Appeals had decided the case en banc. While all the judges had agreed the evidence was admissible, they had divided over whether the evidence was "scientific evidence" that required a particular foundation.² This court later denied review in Trager , but one justice would have allowed review. Trager , 329 Or. 358, 994 P.2d 125 (Durham, J., would allow).

Jonasson did not know about Trager . Thus, he also was not aware that the Trager court had split en banc, or that, when the defendant in that case petitioned for review, one justice of the Supreme Court had voted to allow review. Nor was he aware that attorneys at the Office of Public Defense Services believed that Trager was wrongly decided and continued to encourage objections to such medical diagnosis testimony in an effort to obtain Supreme Court review in a future case.

The trial court convicted petitioner of first-degree sodomy, but it acquitted him of the other two counts. Petitioner ultimately was sentenced to 130 months in prison.³

Petitioner appealed his conviction. His appellate counsel, Allen, did not raise any issue regarding Steinberg’s testimony; she concluded that Jonasson’s failure to object meant that the issue had not been preserved. The Court of Appeals affirmed without opinion, and this court denied review. See State v. Jackson , 208 Or. App. 757, 145 P.3d 1145 (2006), rev. den. , 342 Or. 473, 155 P.3d 51 (2007).

Two and a half years after this court denied petitioner’s petition for review, the Supreme Court effectively overruled Trager . In State v. Southard , 347 Or. 127, 218 P.3d 104 (2009), this court concluded that a medical diagnosis of sexual abuse such as that at issue in this case was not admissible. As an initial matter, the court held that the medical diagnosis did meet the standards required for admission as scientific evidence. Id . at 138-39, 218 P.3d 104. Nevertheless, the court explained that such a diagnosis should be excluded under OEC 403, because the probative value of the diagnosis, when it is not supported by any physical evidence of abuse, is substantially outweighed by the danger of unfair prejudice. I...