Pereida-Alba v. Coursey, 342 P.3d 70

Background

Petitioner was convicted of first-degree robbery after a Shop’N Kart security guard confronted him for shoplifting; a gun was withdrawn from petitioner’s backpack during the confrontation.
Trial counsel did not request a separate jury instruction on the lesser-included offense of third-degree robbery (or theft); the jury was instructed only on first-degree robbery and acquitted/convict choice.
Petitioner sought post-conviction relief claiming ineffective assistance of counsel for failing to request the lesser-included instruction; the post-conviction court granted relief, finding no reasonable counsel would omit that request.
The Oregon Court of Appeals affirmed on a different ground, inferring counsel failed to consider the instruction and treating that omission as constitutionally inadequate.
The Oregon Supreme Court reversed the Court of Appeals and the post-conviction judgment and remanded: it held (1) trial counsel’s forbearance could have been a reasonable tactical choice under the circumstances, (2) the post-conviction court had not made the factual finding that counsel failed to consider the instruction, and (3) if counsel did fail to consider it, further fact-finding and legal analysis are required under governing standards for ineffective assistance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel’s omission of a request for a third-degree robbery instruction constituted deficient performance	Pereida-Alba: omission shows counsel either failed to consider or unreasonably chose not to request instruction; given sentencing disparity, no reasonable counsel would forgo it	State: counsel could reasonably adopt an “all-or-nothing” tactic because evidence of weapon-use to retain property was doubtful and requesting the lesser could expose client to conviction on that lesser charge	Court: omission does not automatically equal deficiency; counsel reasonably could have chosen not to request the instruction given weak evidence of third-degree robbery and ORS 136.460 consequences; remand for factual finding if record supports counsel’s failure to consider the option
Whether failure to consider (versus consciously declining) the lesser-included instruction automatically establishes inadequate assistance	Pereida-Alba: failure to consider is sufficient to show inadequate assistance	State: petitioner must prove counsel did not consider and that omission was unreasonable; strong presumption counsel acted reasonably	Court: failure to consider does not automatically establish inadequacy; but if post-conviction court finds counsel did not consider the option, it must evaluate that failure in light of counsel’s overall strategy per Montez and Strickland standards
Whether the absence of a lesser-included instruction necessarily prejudiced petitioner	Pereida-Alba: jury lacked full statement of law; prejudice presumed because sentencing disparity and jury may have preferred conviction to acquittal	State: no automatic prejudice; evidence that first-degree elements were doubtful and third-degree evidence was slight	Court: prejudice not automatic here — Beck’s concerns apply where evidence of a serious lesser offense is substantial; here evidence for third-degree robbery was slight, so prejudice must be evaluated on remand if counsel’s omission is proven
Burden and required remand procedure	Pereida-Alba: post-conviction court may infer omission and find relief	State: petitioner bears burden of production and persuasion; absent direct evidence of counsel’s mental process, remand unnecessary	Court: petitioner met burden of production because record contains circumstantial evidence that could permit a finding counsel failed to consider the instruction; remand required for the post-conviction court to determine (1) whether counsel failed to consider the instruction and (2) whether that failure, judged against counsel’s strategy, was constitutionally inadequate

Key Cases Cited

Beck v. Alabama, 447 U.S. 625 (1980) (absence of lesser-included instruction can increase risk of unwarranted conviction when evidence of the greater offense is doubtful and evidence of a serious lesser offense is substantial)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
Montez v. Czerniak, 355 Or. 1 (2014) (failure to consider an issue does not automatically equal inadequate assistance; analyze in light of counsel’s strategy)
State v. Naylor, 291 Or. 191 (1981) (legislative purpose of lesser-included instructions is to avoid an all-or-nothing jury choice when evidence would justify a lesser offense)
Krummacher v. Gierloff, 290 Or. 867 (1981) (appellate courts independently review whether counsel’s tactical choices were reasonable)
Trujillo v. Maass, 312 Or. 431 (1991) (petitioner bears burden of proof in post-conviction ineffective-assistance claims)
Lichau v. Baldwin, 333 Or. 350 (2002) (counsel must make a conscious tactical choice about requesting lesser-included instructions)
Yarborough v. Gentry, 540 U.S. 1 (2003) (presumption that counsel’s focus reflects tactical choice; record-only claims face strong presumption of tactical motive)
Stevens v. State, 322 Or. 101 (1995) (do not second-guess reasonable tactical decisions)
State v. Zolotoff, 354 Or. 711 (2014) (effect of ORS 136.460 on sequencing of guilty findings and lesser-included offenses)