sequential inquiry in Oregon

2024In a case in which the petitioner argues that trial counsel failed to adequately investigate a trial strategy, 242 Washington v. Kelly the test for prejudice under Article 1, section 11, is whether “there is more than a mere possibility” that counsel’s failure to investigate “could have tended to affect the outcome[.]” Richardson v. Belleque, 362 Or 236 , 266, 406 P3d 1074 (2017). “[T]he assessment involves a sequential inquiry into whether there was more than a mere possibility that an adequate investigation would have yielded information that could have been used at the [trial or hearing] in

2024In a case in which the petitioner argues that trial counsel failed to adequately investigate a trial strategy, 242 Washington v. Kelly the test for prejudice under Article 1, section 11, is whether “there is more than a mere possibility” that counsel’s failure to investigate “could have tended to affect the outcome[.]” Richardson v. Belleque, 362 Or 236 , 266, 406 P3d 1074 (2017). “[T]he assessment involves a sequential inquiry into whether there was more than a mere possibility that an adequate investigation would have yielded information that could have been used at the [trial or hearing] in

2025R., 224 Or App 133, 139-42 , 197 P3d 61 (2008).

2025R., 224 Or App 133, 139-42 , 197 P3d 61 (2008).

2022As the Supreme Court has explained, “Specifically, in a ‘failure to investigate’ case, a petitioner must show that there is ‘more than a mere possibility’ that competent counsel ‘could have used’ the information that counsel failed to uncover * * * in a way that ‘could have tended to affect’ the outcome of the trial.” Farmer v. Premo, 363 Or 679, 700-01 , 427 P3d 170 (2018) (quoting Richardson, 362 Or at 266 (internal quotation marks omitted)).

2022As the Supreme Court has explained, “Specifically, in a ‘failure to investigate’ case, a petitioner must show that there is ‘more than a mere possibility’ that competent counsel ‘could have used’ the information that counsel failed to uncover * * * in a way that ‘could have tended to affect’ the outcome of the trial.” Farmer v. Premo, 363 Or 679, 700-01 , 427 P3d 170 (2018) (quoting Richardson, 362 Or at 266 (internal quotation marks omitted)).

2003It is possible to reconcile that passage with the sequential analysis that the court prescribed in Smothers and that it reaffirmed in DeMendoza , by carefully focusing on the court’s use of the word “substitute,” which, when used as a noun, ordinarily means “replacement.” See Entrada Lodge, Inc. v. BOLI, 184 Or App 315, 324 , 56 P3d 444 (2002) (stating that “[t]o replace someone” means “to take the place of serve as a substitute for or successor of,” quoting Webster’s Third New Int’l Dictionary 1925 (unabridged ed 1993)).

2003It is possible to reconcile that passage with the sequential analysis that the court prescribed in Smothers and that it reaffirmed in DeMendoza , by carefully focusing on the court’s use of the word “substitute,” which, when used as a noun, ordinarily means “replacement.” See Entrada Lodge, Inc. v. BOLI, 184 Or App 315, 324 , 56 P3d 444 (2002) (stating that “[t]o replace someone” means “to take the place of serve as a substitute for or successor of,” quoting Webster’s Third New Int’l Dictionary 1925 (unabridged ed 1993)).