Petitioner appeals from a general judgment denying his petition for post-conviction relief on the ground that his trial counsel’s performance at sentencing did not meet the requirements of Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. In particular, petitioner contends that his trial counsel performed deficiently by not presenting a mitigation case at sentencing that, in petitioner’s view, could have led the trial court to impose a shorter sentence. The post-conviction court agreed with petitioner that his trial counsel performed deficiently at sentencing. However, the court denied relief—in its words, “somewhat reluctantly”— on the ground that the court was unable to conclude that petitioner was prejudiced by his trial counsel’s deficient performance. Specifically, the court explained that to conclude that petitioner was prejudiced for purposes of Article I, section 11, and the Sixth Amendment, it would have to find “by a preponderance of the evidence” that the sentencing judge “would have” been affected by the mitigation case that the court had determined a competent lawyer would have made.
On appeal, petitioner assigns error to the post-conviction court’s determination that he did not demonstrate that he was prejudiced by trial counsel’s deficient performance. Petitioner argues that the post-conviction court applied a legally incorrect—and too demanding—standard in assessing prejudice. In a memorandum of additional authorities, petitioner calls our attention to the Supreme Court’s decision in Green v. Franke,
Petitioner was convicted in a bench trial of nine counts of robbery—three counts of first-degree robbery and six counts of second-degree robbery. The trial court sentenced him to a sum of 40 years’ incarceration. It did so by imposing consecutive sentences on five of the counts.
Petitioner seeks post-conviction relief on the ground that he received inadequate and ineffective assistance of counsel at sentencing,
The post-conviction court was persuaded by petitioner’s evidence that trial counsel performed deficiently by not presenting mitigation evidence at petitioner’s sentencing. However, as noted, the court determined that petitioner had not persuaded it that the omitted mitigation evidence “would have had any effect on the decision that [the sentencing judge] made or the sentence that he rendered.”
On appeal, petitioner argues that the post-conviction court’s explanation of its ruling illustrates that the court erroneously required petitioner to prove that it was more likely than not that the omitted mitigation evidence would have affected the court’s sentencing decision. Petitioner argues that state and federal case law, including Green, establishes that a lower standard than that applied by the post-conviction court governs the determination of prejudice.
In response, defendant does not challenge the post-conviction court’s ruling that trial counsel performed defi-ciently. Defendant also does not appear to dispute that the legal standard for prejudice advocated by petitioner is the correct one. Rather, defendant argues that petitioner failed to preserve his contention that the post-conviction court applied the incorrect legal standard in determining prejudice. Although defendant acknowledges that petitioner’s written arguments alerted the post-conviction court to the correct legal standard, defendant argues that, to preserve his claim, petitioner should have objected when the court’s oral ruling revealed that the court was applying an incorrect legal standard. Alternatively, defendant argues that the post-conviction court, in fact, applied the proper legal standard and correctly determined that petitioner did not establish that he was prejudiced by trial counsel’s deficient performance.
We reject defendant’s preservation argument. As the Supreme Court has explained, for preservation purposes, a party ordinarily need not reiterate orally the arguments that it has made in writing, and also need not renew those arguments after the court has made its ruling. State v. Walker,
On the merits, it is apparent to us from the post-conviction court’s statements on the record that the court was of the view that, to prove the prejudice element of an inadequate or ineffective assistance of counsel claim, petitioner was required to prove that it was more likely than not that, but for trial counsel’s deficiency, the outcome of petitioner’s sentencing proceeding would have been different. The post-conviction court’s explanation of its ruling demonstrates that that is how the court understood the standard:
“[The Court:] Now would this evidence that I heard today have affected [the sentencing judge]? I can’t be 100% certain, but I don’t need to be; I need to be persuaded by a preponderance of the evidence that it would have and I can’t—I can’t make that finding today.
“I cannot make—given—I read the sentencing transcript over very carefully yesterday afternoon; I read it before the first hearing; and I can’t find that even if everything you presented today had been presented to [the sentencing judge] it would have had any effect on the decision that he made or the sentence that he rendered.
“For that reason and I will quite candidly say, somewhat reluctantly, I am compelledto deny the petition for post-conviction relief.”
Green makes clear that the post-conviction court applied an incorrect legal standard in deciding prejudice for purposes of petitioner’s Article I, section 11, claim. In Green, the Supreme Court addressed the standard for prejudice on claims of inadequate assistance under Article I, section 11. The court explained that the standard for assessing whether trial counsel’s deficient performance prejudiced a petitioner who was convicted pursuant to a trial is whether the deficient performance could have affected the outcome of the case. Green,
Strickland makes it equally clear that the post-conviction court applied the wrong legal standard in assessing prejudice for purposes of petitioner’s Sixth Amendment claim.
In sum, we are persuaded that the post-conviction court erroneously required petitioner to prove that it was more likely than not that he would have received a different sentence but for his trial counsel’s unprofessional errors. That standard was incorrect under both Green and Strickland. For that reason, we reverse and remand for the post-conviction court to evaluate prejudice under the legally correct standard. See Green,
Reversed and remanded.
Notes
By contrast, as Green explains, “where the prejudice inquiry focuses on a different type of outcome, for example, whether in the absence of inadequate assistance of counsel the petitioner would have entered a guilty plea,” a petitioner typically must prove that, but for trial counsel’s error, the petitioner would have rejected a plea deal and would have insisted on going to trial. Green,