outcome standard in Oregon

2017To prove prejudice under the Oregon Constitution, a petitioner must show that his counsel’s deficient performance had “a tendency to affect the result of the prosecution.” Stevens v. State of Oregon, 322 Or 101, 110 , 902 P2d 1137 (1995); see also Green v. Franke, 357 Or 301, 322-23 , 350 P3d 188 (2015) (explaining that “the tendency to affect the outcome standard demands more than mere possibility, but less than probability,” and that “the issue is whether trial counsel’s acts or omissions could have tended to affect the outcome of the case” (emphasis in original; internal quotation marks omi

2017To prove prejudice under the Oregon Constitution, a petitioner must show that his counsel’s deficient performance had “a tendency to affect the result of the prosecution.” Stevens v. State of Oregon, 322 Or 101, 110 , 902 P2d 1137 (1995); see also Green v. Franke, 357 Or 301, 322-23 , 350 P3d 188 (2015) (explaining that “the tendency to affect the outcome standard demands more than mere possibility, but less than probability,” and that “the issue is whether trial counsel’s acts or omissions could have tended to affect the outcome of the case” (emphasis in original; internal quotation marks omi

2023Smith v. Dept. of Corrections, 219 Or App 192 , 5 Petitioners’ claim that our decision will impact prospective litigation is not sufficient to carry their initial burden of identifying “practical effects or collat- eral consequences” that flow from the outcome of their rule challenge.

2023Smith v. Dept. of Corrections, 219 Or App 192 , 5 Petitioners’ claim that our decision will impact prospective litigation is not sufficient to carry their initial burden of identifying “practical effects or collat- eral consequences” that flow from the outcome of their rule challenge.

2015The court, however, concluded that petitioner was not prejudiced under the federal constitution because it could not say “that a reasonable trier of fact probably would have drawn” a conclusion that she was prejudiced under the standard articulated in Strickland v. Washington, 466 US 668 , 104 S Ct 2052 , 80 L Ed 674 (1984) (Emphasis in original.) The post-conviction court added, “Such a finding that the error is likely to have affected the outcome is the standard for granting relief under federal law.” In assigning error to the court’s grant of post-conviction relief, defendant raises three a

2015The court, however, concluded that petitioner was not prejudiced under the federal constitution because it could not say “that a reasonable trier of fact probably would have drawn” a conclusion that she was prejudiced under the standard articulated in Strickland v. Washington, 466 US 668 , 104 S Ct 2052 , 80 L Ed 674 (1984) (Emphasis in original.) The post-conviction court added, “Such a finding that the error is likely to have affected the outcome is the standard for granting relief under federal law.” In assigning error to the court’s grant of post-conviction relief, defendant raises three a

2017Petitioner contends that Oregon law does not require proof of proba- ble, more-likely-than-not, prejudice and that he has met the Oregon standard of prejudice articulated in cases such as Krummacher, 290 Or at 883 , and Stevens v. State of Oregon, 322 Or 101, 110 , 902 P2d 1137 (1995): proof that the defi- cient performance had “a tendency to affect the result of the prosecution.” Using the federal formulation of prejudice, the state argues that petitioner was required to prove that (1) it was “reasonably probable” that competent defense counsel, after conducting an adequate investigation and

2017Petitioner contends that Oregon law does not require proof of proba- ble, more-likely-than-not, prejudice and that he has met the Oregon standard of prejudice articulated in cases such as Krummacher, 290 Or at 883 , and Stevens v. State of Oregon, 322 Or 101, 110 , 902 P2d 1137 (1995): proof that the defi- cient performance had “a tendency to affect the result of the prosecution.” Using the federal formulation of prejudice, the state argues that petitioner was required to prove that (1) it was “reasonably probable” that competent defense counsel, after conducting an adequate investigation and

2014The court also affirmed the outcome of that inquiry: “We hold that the PUC’s conclusion — that the inclusion of the unlawful component did not cause the rates to be unjust or unreasonable and, therefore, has not resulted in any unrectified damage to ratepayers — was consonant with the remands and with the PUC’s responsibility * * * ” Id. at 94 .

2014The court also affirmed the outcome of that inquiry: “We hold that the PUC’s conclusion—that the inclusion of the unlawful component did not cause the rates to be unjust or unreasonable and, therefore, has not resulted in any unrectified damage to ratepayers—was con- sonant with the remands and with the PUC’s responsibility * * *.” Id. at 94 .

1987In support of these propositions, the court cited Ward v. Village of Monroeville, 409 US 57 , 93 S Ct 80 , 34 L Ed 2d 267 (1972); Turney v. Ohio, 273 US 510 , 47 S Ct 437 , 71L Ed 749 (1927); Gibson v. Berryhill, 411 US 564, 578-579 , 93 S Ct 1689 , 36 L Ed 2d 488 (1973); Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975); and Commonwealth Corp. v. Casualty Co., supra. The general proposition is unexceptionable, though it rather grandly passes over the key question what kind of interests are distinctively “personal” and how directly they must be at stake in the outcome.

1987In support of these propositions, the court cited Ward v. Village of Monroeville, 409 US 57 , 93 S Ct 80 , 34 L Ed 2d 267 (1972); Turney v. Ohio, 273 US 510 , 47 S Ct 437 , 71L Ed 749 (1927); Gibson v. Berryhill, 411 US 564, 578-579 , 93 S Ct 1689 , 36 L Ed 2d 488 (1973); Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975); and Commonwealth Corp. v. Casualty Co., supra. The general proposition is unexceptionable, though it rather grandly passes over the key question what kind of interests are distinctively “personal” and how directly they must be at stake in the outcome.

1987In support of these propositions, the court cited Ward v. Village of Monroeville, 409 US 57 , 93 S Ct 80 , 34 L Ed 2d 267 (1972); Turney v. Ohio, 273 US 510 , 47 S Ct 437 , 71L Ed 749 (1927); Gibson v. Berryhill, 411 US 564, 578-579 , 93 S Ct 1689 , 36 L Ed 2d 488 (1973); Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975); and Commonwealth Corp. v. Casualty Co., supra. The general proposition is unexceptionable, though it rather grandly passes over the key question what kind of interests are distinctively “personal” and how directly they must be at stake in the outcome.

1987In support of these propositions, the court cited Ward v. Village of Monroeville, 409 US 57 , 93 S Ct 80 , 34 L Ed 2d 267 (1972); Turney v. Ohio, 273 US 510 , 47 S Ct 437 , 71L Ed 749 (1927); Gibson v. Berryhill, 411 US 564, 578-579 , 93 S Ct 1689 , 36 L Ed 2d 488 (1973); Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975); and Commonwealth Corp. v. Casualty Co., supra. The general proposition is unexceptionable, though it rather grandly passes over the key question what kind of interests are distinctively “personal” and how directly they must be at stake in the outcome.

2025We also conclude that the record demonstrates that the substitution of a different judge “would have tended to affect the outcome of the case.” The “tendency to affect the outcome standard demands more than a mere possibility, but less than a probability.” Green, 357 Or at 322 ; Jaynes v. Cain, 319 Or App 659, 670-71 , 511 P3d 58 (2022).

2025We also conclude that the record demonstrates that the substitution of a different judge “would have tended to affect the outcome of the case.” The “tendency to affect the outcome standard demands more than a mere possibility, but less than a probability.” Green, 357 Or at 322 ; Jaynes v. Cain, 319 Or App 659, 670-71 , 511 P3d 58 (2022).

2023“To be entitled to post-conviction relief based on inadequate assistance of counsel, a petitioner must show that counsel failed to exercise reasonable professional skill and judgment” and “that counsel’s failure had a tendency to affect the result of his trial.” Johnson v. Premo, 361 Or 688, 699 , 399 P3d 431 (2017) (internal quotation marks omitted). “[T]he tendency to affect the outcome standard demands more than mere possibility, but less than probability.” Green v. Franke, 357 Or 301, 322 , 350 P3d 188 (2015).

2023“To be entitled to post-conviction relief based on inadequate assistance of counsel, a petitioner must show that counsel failed to exercise reasonable professional skill and judgment” and “that counsel’s failure had a tendency to affect the result of his trial.” Johnson v. Premo, 361 Or 688, 699 , 399 P3d 431 (2017) (internal quotation marks omitted). “[T]he tendency to affect the outcome standard demands more than mere possibility, but less than probability.” Green v. Franke, 357 Or 301, 322 , 350 P3d 188 (2015).

2023Nonprecedential Memo Op: 326 Or App 100 (2023) 103 omitted). “[T]he tendency to affect the outcome standard demands more than mere possibility, but less than probabil- ity.” Green, 357 Or at 322 .

2023In applying those standards, we “must make every effort to evaluate a lawyer’s conduct from the lawyer’s perspective at the time, without the distorting effects of hindsight.” Lichau v. Baldwin, 333 Or 350, 360 , 39 P3d 851 (2002). “[T]he standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effec- tiveness of counsel under the federal constitution.” Montez v. Czerniak, 355 Or 1, 6-7 , 322 P3d 487 , adh’d to on recons, 355 Or 598 , 330 P3d 595 (2014).

2023In applying those standards, we “must make every effort to evaluate a lawyer’s conduct from the lawyer’s perspective at the time, without the distorting effects of hindsight.” Lichau v. Baldwin, 333 Or 350, 360 , 39 P3d 851 (2002). “[T]he standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effec- tiveness of counsel under the federal constitution.” Montez v. Czerniak, 355 Or 1, 6-7 , 322 P3d 487 , adh’d to on recons, 355 Or 598 , 330 P3d 595 (2014).

2023R., 256 Or App 566, 571-72 , 303 P3d 954 (2013) (deter- mining that the failure to advise the appellant of her right to subpoena witnesses was not harmless because we could not conclude that she received the information from another source, and the error may have impacted the outcome of the hearing because the testimony of the appellant’s husband was not helpful, and her children did not testify).

2023R., 256 Or App 566, 571-72 , 303 P3d 954 (2013) (deter- mining that the failure to advise the appellant of her right to subpoena witnesses was not harmless because we could not conclude that she received the information from another source, and the error may have impacted the outcome of the hearing because the testimony of the appellant’s husband was not helpful, and her children did not testify).

2022As in Smith, “the law applicable to petitioner’s sentence and the order of release allow for petitioner’s active supervision to continue to the sentence expiration date, and the law does not require the board to change petitioner’s parole status from active to inactive based on petitioner’s initial parole date alone.” 305 Or App at 780 .

2020The outcome of that inquiry “is a function of the substantive law governing the claim.” Cejas Commercial Interiors, Inc. Cite as 306 Or App 252 (2020) 255 v. Torres-Lizama, 260 Or App 87, 112 , 316 P3d 389 (2013).

2020The outcome of that inquiry “is a function of the substantive law governing the claim.” Cejas Commercial Interiors, Inc. Cite as 306 Or App 252 (2020) 255 v. Torres-Lizama, 260 Or App 87, 112 , 316 P3d 389 (2013).

2020The outcome of that inquiry “is a function of the substantive law governing the claim.” Cejas Commercial Interiors, Inc. Cite as 306 Or App 252 (2020) 255 v. Torres-Lizama, 260 Or App 87, 112 , 316 P3d 389 (2013).

2019See Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) ; Maxfield v. Nooth, 278 Or.

2018As we have explained, "[t]hat determination involves an extensive consideration of the evidence presented by both the state and petitioner at the criminal trial, as well as any other aspects of the criminal trial that are pertinent to the issue considered in light of the issues at trial in their entirety." Maney v. Angelozzi , 285 Or.

2017When a petitioner’s claim is that his trial counsel was deficient for failing to investigate and pursue a particular trial strategy, as petitioner argues here, “the petitioner must adduce evidence at the post-conviction hearing that would have been discovered and introduced at the criminal trial had trial counsel undertaken the proposed investigation.” Short v. Hill, 195 Or App 723, 729 , 99 P3d 311 (2004), rev den, 338 Or 374 (2005) (emphasis added).

2017When a petitioner’s claim is that his trial counsel was deficient for failing to investigate and pursue a particular trial strategy, as petitioner argues here, “the petitioner must adduce evidence at the post-conviction hearing that would have been discovered and introduced at the criminal trial had trial counsel undertaken the proposed investigation.” Short v. Hill, 195 Or App 723, 729 , 99 P3d 311 (2004), rev den, 338 Or 374 (2005) (emphasis added).

2017When a petitioner’s claim is that his trial counsel was deficient for failing to investigate and pursue a particular trial strategy, as petitioner argues here, “the petitioner must adduce evidence at the post-conviction hearing that would have been discovered and introduced at the criminal trial had trial counsel undertaken the proposed investigation.” Short v. Hill, 195 Or App 723, 729 , 99 P3d 311 (2004), rev den, 338 Or 374 (2005) (emphasis added).

2017That determination involves “an extensive consideration of the evidence presented by both the state and petitioner at the criminal trial,” as well as “any other aspects of the criminal trial that are pertinent to the issue * * * considered in light of the issues at trial in their entirety[.]” Wright v. Nooth, 264 Or App 329, 334 , 336 P3d 1 , rev den, 356 Or 517 (alterations in original; internal quotation marks omitted).

2017That determination involves “an extensive consideration of the evidence presented by both the state and petitioner at the criminal trial,” as well as “any other aspects of the criminal trial that are pertinent to the issue * * * considered in light of the issues at trial in their entirety[.]” Wright v. Nooth, 264 Or App 329, 334 , 336 P3d 1 , rev den, 356 Or 517 (alterations in original; internal quotation marks omitted).