Petitioner appeals a judgment denying his petition for post-conviction relief. We write only to address petitioner’s second assignment of error, in which he contends that relief should have been granted because his criminal trial counsel was inadequate for failing to object to the use of a leg brace to restrain petitioner during the trial, and reject the remaining assignments of error without discussion. On review for errors of law, Green v. Franke,
In reviewing a judgment on a petition for post-conviction relief, we are bound by the post-conviction court’s findings of fact if they are supported by evidence in the record. Krieg v. Belleque,
A grand jury indicted petitioner with 109 counts of rape, sexual abuse, and assault of his stepdaughter and two other sex crimes. During a pretrial hearing, his counsel requested that petitioner not be brought to the court in “shackles,” and asserted that, instead, a leg brace should be used because it would not be “readily apparent” to the jury. After trial counsel’s request, the trial court questioned the sheriffs deputies present in the courtroom on the availability of a “shock belt” that could be worn under petitioner’s clothing, explaining that petitioner would “need to be unshackled in front of the jury.” The court also stated that, “[i]f there are security concerns, and I don’t know if there are, those need to be raised by the sheriff or the deputies.” There was no further discussion on the record of the need for the brace or whether petitioner created any security concerns, and, during the trial, petitioner was restrained by a leg brace, worn under his pants. Petitioner was subsequently convictéd of 29 counts of rape, sexual abuse, and encouraging child sexual abuse and was sentenced to 425 months’ imprisonment. Those convictions were affirmed on appeal, and the Supreme Court denied review. State v. Sproule,
Petitioner timely filed a petition for post-conviction relief, claiming a substantial denial of his state and federal constitutional rights to adequate and effective assistance of counsel.
The legal standards for determining inadequate assistance of counsel claims in post-conviction relief proceedings are well established. Criminal defendants are guaranteed adequate assistance of trial counsel by Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Krummacher v. Gierloff,
“‘First, we must determine whether petitioner demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment. Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendency to affect the result of his trial.’”
Montez v. Czerniak,
To prevail on a Sixth Amendment claim of “ineffective assistance of counsel,” a petitioner must prove that counsel performed ineffectively under “prevailing professional norms” and that, “but for counsel’s unprofessional errors,” there is a “reasonable probability” that “the result of the proceeding would have been different.” Strickland,
On appeal, petitioner contends that the post-conviction court erred in denying him relief. He argues that his trial counsel performed inadequately because she failed to object that the use of the leg brace during his trial was unlawful in the absence of a record supporting the need for the restraint. Petitioner also contends that any use of an unjustified restraint is presumptively prejudicial and that defendant failed to show the absence of any prejudice. Defendant responds that petitioner failed to prove ineffective assistance of counsel, and that, even if the restraint was improperly imposed, the post-conviction court properly concluded that petitioner suffered no prejudice as a result.
Criminal defendants have the right to appear in court free from unnecessary restraint. State v. Kessler,
A trial court has “discretion to order the shackling of a defendant if there is evidence of an immediate and serious risk of dangerous or disruptive behavior.” Wall,
Relying on Cunningham v. Thompson,
“[a] post-conviction petitioner establishes a prima facie case of inadequate assistance of criminal trial counsel by showing that the petitioner was shackled in the presence of the jury during his or her criminal trial and that no record was made in the trial court to support the decision to shackle. Guinn v. Cupp,304 Or 488 , 498,747 P2d 984 (1987).”
Defendant responds that the presumed inadequate assistance established by the formula set out in Davis and Cunningham is insufficient to discharge the burden of proof allocated to a post-conviction relief petitioner under ORS 138.620(2) to “establish [the facts alleged in the petition] by a preponderance of the evidence.” See also ORS 138.530(1) (requiring that grounds for post-conviction relief be “established” by a petitioner). According to defendant, in order to prove ineffective assistance of counsel, a petitioner must show not only shackling and a lack of justification for that shackling in the record under Davis and Cunningham, but also must prove that the restraint actually was unjustifiably applied. Defendant asks that we overrule Davis and Cunningham to whatever extent they undercut that allocated burden of proof.
We decline that invitation. Even assuming that there was inadequate assistance of trial counsel in failing to object to the use of a leg brace to restrain petitioner, we conclude that petitioner is not entitled to relief because he did not prove that the use of the leg brace had a tendency to affect the outcome of the criminal trial. Relying on Davis, petitioner argues that he has met his burden to prove the prejudice component of his inadequate assistance of counsel claim because the prejudice caused by the improper use of such a restraint is “‘manifest and need not be proven in an individual case.’” Davis,
There are three types of prejudice that can potentially result from the erroneous restraint of a criminal defendant during a trial:
“(1) impingement on the presumption of innocence and the dignity of judicial proceedings; (2) inhibition of the accused’s decision whether to take the stand as a witness; and (3) inhibition of the accused’s consultation with his or her attorney.”
State v. Bates,
Petitioner is incorrect in arguing that he can meet his burden to prove prejudice by showing no more than the improper
“‘difficult to accept the proposition that [a criminal] defendant could sit through a jury trial and constantly maintain a posture such that the jury would not see the leg irons. It is not a question whether the jury will be constantly exposed to the vision of a shackled defendant, but whether they see the shackles at all.’”
Id. (quoting Kessler,
In contrast, if a defendant is restrained in a manner that is not visible to the jury, prejudice will not be presumed. For example, in State v. Bowen,
Similarly, in Bates,
“typically results when the jury is aware of the restraints. Here, the parties agree that the jury was unaware of the stun belt. Furthermore, the dignity of the judicial proceedings was not affected by the stun belt because it was never activated. To the extent that one could argue that the mere fact that a defendant is forced to wear a stun belt impinges on the dignity and decorum of a judicial proceeding, such an argument would not be relevant to a harmless error analysis because that sort of effect on the dignity of the judicial proceeding would not have influenced the jury’s verdict if the jury were unaware of the belt. Thus, we conclude that there is little likelihood that the stun belt affected the verdict by impinging on the presumption of innocence or the dignity of the proceeding because the jury was unaware of the presence of the stun belt.”
Id.
In this case, the post-conviction court found that the brace “was not visible to the jury.” Because it is necessary to the post-conviction court’s legal conclusion that petitioner was not prejudiced by any inadequacy by trial counsel, that finding necessarily implies that the jury was not aware that petitioner was wearing the brace in the courtroom. See Krieg,
Thus, given that the record supports the post-conviction relief court’s implicit finding that the jury was not aware that petitioner was restrained, we will not presume that the restraint improperly impinged on the presumption of innocence or the dignity of the proceedings, and thereby prejudiced petitioner. Accordingly, petitioner failed to prove, by a preponderance of the evidence, that trial counsel’s failure to object to the use of the leg brace without an adequate showing that petitioner posed a security risk had “a tendency to affect the result” of his trial. Horn v. Hill,
Affirmed.
Notes
ORS 138.530(l)(a) provides:
“Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.”
Petitioner also argues that Wall,