390 P.3d 1079
Or. Ct. App.2017Background
- Petitioner was tried in 2004 on multiple felony counts charging conduct against three victims; the trial court gave the standard accomplice-liability “natural and probable consequences” jury instruction without objection from trial counsel.
- Prosecutor emphasized the natural-and-probable-consequences theory in closing; jury convicted on all counts and petitioner received a lengthy aggregate sentence.
- Petitioner filed a post-conviction relief petition (first amended petition) after State v. Lopez‑Minjarez (2011), asserting nine ineffective-assistance claims, including that trial counsel was deficient for failing to object to that instruction.
- The State moved for summary judgment arguing petitioner offered no evidence that reasonable counsel in 2004 would have objected; the State later, in reply, also argued lack of prejudice and submitted additional trial transcript excerpts.
- The post‑conviction court granted summary judgment on the fourth claim on two alternative grounds (no deficient performance and no prejudice). Petitioner appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s failure to object to the "natural and probable consequences" instruction in a post‑Anlauf trial was constitutionally deficient | Trial counsel should have preserved/ objected to the instruction given Anlauf and the nature of the case; failure to object reflects lack of reasonable professional skill | No evidence that, in 2004, reasonable trial attorneys were objecting to that instruction; counsel could reasonably rely on existing practice/case law | Court: Evidence proffered by petitioner (timing, charges, instruction given, lack of objection, and prosecutor’s reliance) was sufficient to create a prima facie showing of deficient performance; post‑conviction court erred to the extent it required petitioner to prove contemporaneous practitioner practice records |
| Whether petitioner proved prejudice from counsel’s failure to object | The prosecutor emphasized the instruction and it could have influenced the jury on counts related to victim C (Counts 1–2) | On reply the State argued the record shows the jury did not rely on that instruction for some counts and submitted additional transcript excerpts | Court: Genuine issues of material fact exist as to prejudice for Counts 1 and 2 (conduct against C); no genuine issue as to Count 3. Summary judgment on whole claim was improper |
| Proper scope of summary‑judgment burden when movant raises prejudice for the first time in reply | Petitioner contended burden shifting rules and reply‑only arguments cannot shortcut plaintiff’s right to develop a record | State argued it could raise lack of prejudice in reply and support it with additional transcript evidence | Court: Although State raised prejudice in reply, when record is viewed most favorably to petitioner there remain genuine factual disputes; appellate decision addresses merits and reverses as to the fourth claim |
| Whether post‑Anlauf timing alone excuses counsel from investigating the instruction’s validity | Petitioner argued Anlauf should have prompted counsel to investigate and object where prosecution relied on accomplice theory | State suggested defense practice/custom might have accepted the instruction in 2004 and that absence of widespread objections matters | Held: Timing after Anlauf plus the case’s nature required counsel to investigate; failure to do so can be unreasonable; evidence of contemporaneous bar practice not essential to establish deficiency (Walraven/Wade principles apply) |
Key Cases Cited
- State v. Lopez‑Minjarez, 350 Or. 576 (Oreg. 2011) (disapproved the natural‑and‑probable‑consequences accomplice instruction)
- Walraven v. Premo, 277 Or. App. 264 (Or. Ct. App. 2016) (post‑Anlauf failure to object to the instruction can be deficient; explains required inquiry)
- Wade v. Brockamp, 268 Or. App. 373 (Or. Ct. App. 2015) (similar holding that counsel’s failure to object post‑Anlauf was unreasonable)
- State v. Anlauf, 164 Or. App. 672 (Or. Ct. App. 2000) (signaled that the natural‑and‑probable‑consequences theory did not align with accomplice liability under modern statutory law)
- Garner v. Premo, 283 Or. App. 494 (Or. Ct. App. 2017) (summarizes post‑conviction ineffective‑assistance standards and how to evaluate trial counsel decisions)