373 P.3d 1113
Or. Ct. App.2016Background
- Petitioner was convicted of first-degree manslaughter and second-degree assault after an altercation at a tavern; jury later found him a "dangerous offender" and court imposed an indeterminate sentence (min. 260 months).
- At presentence, the State’s expert psychiatrist, Dr. Suckow, testified petitioner had an antisocial personality disorder (based in part on alleged conduct disorder symptoms before age 15).
- Defense counsel cross-examined Suckow but did not consult or call a defense psychologist; counsel testified post-trial that he reviewed Suckow’s report and concluded an independent expert would not help.
- Post-conviction, petitioner produced Dr. Norvin Cooley, whose review of juvenile records (St. Mary’s) suggested petitioner had an adjustment disorder, not a conduct disorder, undermining an antisocial personality diagnosis.
- The post-conviction court found counsel inadequate at the sentencing phase for failing to investigate and present a rebuttal expert and vacated the dangerous-offender sentence, remanding for resentencing; the court denied other claims of ineffective assistance.
- The appellate court affirmed the post-conviction judgment, holding counsel’s failure to consult an expert was unreasonable and prejudicial because evidence of an adjustment disorder could have undercut the dangerous-offender finding.
Issues
| Issue | Plaintiff's Argument (Petitioner) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective at sentencing for not consulting/calling a defense psychologist | Jagger’s failure to investigate and retain an expert deprived petitioner of reasonable professional skill; a defense expert would have shown no antisocial personality disorder and rebutted Suckow | Counsel reasonably pursued cross-examination as tactical choice; a defense expert would not have helped and might have harmed the defense | Counsel’s performance was inadequate: failure to investigate/explore an expert was not a reasonable, informed strategy |
| Whether petitioner was prejudiced by counsel’s failure (i.e., result likely affected) | A competing expert showing an adjustment disorder (not conduct disorder) would have undercut antisocial personality diagnosis and the jury’s dangerous-offender finding | Cross-examination sufficiently impeached Suckow; expert testimony (Cooley) would not have changed outcome and could have been harmful | Prejudice shown: Cooley’s diagnosis could have prevented the dangerous-offender finding and thus had a tendency to affect the sentence |
| Whether counsel was ineffective during the guilt phase | (On cross-appeal) Petitioner argued trial counsel was inadequate at guilt phase | State argued no inadequacy; appellate review previously affirmed conviction | Post-conviction court denied relief on guilt-phase claim; appellate court affirmed without written discussion |
| Whether appellate counsel was ineffective on direct appeal | (On cross-appeal) Petitioner argued appellate counsel provided inadequate representation | State defended adequacy of appellate advocacy | Post-conviction court denied relief on appellate-ineffectiveness claim; appellate court affirmed without written discussion |
Key Cases Cited
- Montez v. Czerniak, 355 Or. 1 (Or. 2014) (state and federal standards for counsel adequacy functionally equivalent)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (federal standard for effective assistance of counsel)
- Lichau v. Baldwin, 333 Or. 350 (Or. 2002) (post-conviction factfinding and deference)
- Pereida-Alba v. Coursey, 356 Or. 654 (Or. 2015) (two-step adequacy and prejudice inquiry under state constitution)
- Burcham v. Franke, 265 Or. App. 300 (Or. App. 2014) (attorney duty to investigate facts and law reasonably)
- Gorham v. Thompson, 332 Or. 560 (Or. 2000) (tactical decisions must be grounded in reasonable investigation)
- Stevens v. State of Oregon, 322 Or. 101 (Or. 1995) (tactical choice requires conscious, reasonable evaluation)
- Johnson v. Premo, 277 Or. App. 225 (Or. App. 2016) (failure to consult expert can unreasonably limit defense options)
- Krummacher v. Gierloff, 290 Or. 867 (Or. 1981) (prejudice standard: tendency to affect result)
- State v. Richardson, 226 Or. App. 85 (Or. App. 2009) (direct appeal decision affirming conviction)