474 P.3d 417
Or. Ct. App.2020Background
- Petitioner pleaded guilty to second-degree assault after defense counsel negotiated a plea offer; counsel had emailed the prosecutor expressing concerns that petitioner might not be able to "aid and assist" and referencing extensive juvenile/mental-health records.
- Counsel never obtained a mental-health evaluation despite telling petitioner one would occur and despite awareness petitioner was off medication.
- Petitioner filed a post-conviction petition alleging ineffective assistance for failing to investigate mental health and for failing to alert the trial court to aid-and-assist concerns.
- The post-conviction court granted summary judgment for the superintendent without a hearing, stating an expert affidavit was necessary to create a factual dispute about mental illness and its effect on the plea.
- On appeal the court reversed and remanded: it held the court erred by dismissing with prejudice without a hearing under the post-conviction statute, and it explained that expert testimony may be relevant but is not required to survive summary judgment for claims about failing to alert the court to aid-and-assist concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony is required to survive summary judgment for a claim that counsel failed to investigate a mental-health defense | Snyder: Not necessarily; petitioner can create factual dispute by his testimony and other evidence | Amsberry: An expert affidavit is required to show what an investigation would have produced and to show prejudice | Open question as to mental-health-defense claims; the court did not decide whether expert proof is always required for that category of claim |
| Whether expert testimony is required to survive summary judgment for a claim that counsel failed to alert the court to aid-and-assist (fitness-to-proceed) concerns | Snyder: Expert not required; court inquiry could have followed from counsel alerting court | Amsberry: Expert needed to establish lack of fitness and resulting prejudice | Held for Snyder on this point: expert testimony may be relevant but is not required; prejudice inquiry asks whether there is "more than a mere possibility" the court would have found petitioner unfit and suspended proceedings |
| Whether the post-conviction court erred by granting summary judgment and dismissing with prejudice without a hearing | Snyder: Statute (ORS 138.620) mandates a hearing and presence of petitioner/counsel before dismissal with prejudice | Amsberry: Petitioner did not request a hearing and therefore failed to preserve the issue | Held for Snyder: Court erred; dismissal with prejudice without a hearing violated the statutory scheme and required reversal and remand |
| Whether Snyder forfeited appellate review by not contemporaneously requesting a hearing and whether the error was harmless | Snyder: No forfeiture—petitioner had no practical ability to preserve because statute required a hearing; error not harmless | Amsberry: Issue unpreserved and, alternatively, any error was harmless | Held for Snyder: Preservation requirement excused (Peeples exception); error was not harmless and required remand |
Key Cases Cited
- Eklof v. Steward, 360 Or 717 (2016) (summary judgment standard: view evidence in light most favorable to nonmoving party)
- Ware v. Hall, 342 Or 444 (2007) (post-conviction petitioner must be afforded hearing and counsel before dismissal with prejudice)
- Peeples v. Lampert, 345 Or 209 (2008) (preservation requirement can be excused when party had no practical ability to raise issue)
- Strickland v. Washington, 466 U.S. 668 (1984) (prejudice standard requires reasonable probability result would differ but for counsel's errors)
- Richardson v. Belleque, 362 Or 236 (2017) (contextual evaluation of prejudice where expert information could have affected proceeding)
- Short v. Hill, 195 Or App 723 (2004) (claim that counsel failed to investigate requires adducing evidence of what investigation would have discovered)