Opinion
A170635
07-20-2022
DARRELL KELLY MIDDLEKAUFF, Petitioner-Appellant, v. Sue WASHBURN, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
Frank E. Stoller argued the cause for appellant. Also on the briefs was Teena M. Killian. Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and Submitted June 23, 2022
Umatilla County Circuit Court CV160757; A170635 J. Burdette Pratt, Judge.
Frank E. Stoller argued the cause for appellant. Also on the briefs was Teena M. Killian.
Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Aoyagi, Judge, and Powers, Judge.
JAMES, P. J.
Petitioner appeals from a judgment denying postconviction relief, raising multiple assignments of error. First, petitioner argues that his waiver of jury was legally insufficient, as it was not knowingly, intelligently, and voluntarily made. That legal argument is barred because it could have, and should have, been raised in his direct appeal. Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994) (interpreting ORS 138.550 to require that, absent a few "narrow exceptions," a post-conviction petitioner may not obtain postconviction relief on a ground that he or she could reasonably have been expected to raise at trial or on direct appeal in the underlying criminal proceeding); McDonnell v. Premo, 309 Or.App. 173, 180, 483 P.3d 640 (2021), rev den, 369 Or. 507 (2022) (holding same).
Petitioner's second argument, that his trial counsel was ineffective in failing to counsel him against entering a guilty plea, is not supported by the factual findings made by the post-conviction court. We review the post-conviction court's rulings for legal error. ORS 138.650(1). We are bound by the post-conviction court's findings if they are supported by any evidence in the record. Montez v. Czerniak, 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons, 355 Or. 598, 330 P.3d 595 (2014). "If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistent with the post-conviction court's conclusions of law." Id.
Petitioner's third argument is that trial counsel was ineffective in preparing him to testify. The post-conviction court found that trial counsel believed petitioner intended to offer false testimony. Petitioner does not offer any authority for why, in the face of that factual finding, the post-conviction court erred in finding counsel's performance legally sufficient. Further, even if we were to assume counsel's performance was deficient, petitioner has not explained how he was prejudiced. Under the Oregon Constitution, the prejudice is established when the facts show, by a preponderance of the evidence, that the acts or omissions of counsel "'had a tendency to affect the result of the trial.'" Burdge v. Palmateer,
338 Or. 490, 492, 112 P.3d 320 (2005) (quoting Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002)). We recently said in Running v. Kelly, 306 Or.App. 589, 601-02, 475 P.3d 450 (2020), that, to show a "tendency," "'a petitioner must show more than it is possible that the outcome of the prosecution would have been different if counsel had performed reasonably, but need not show that it is more likely than not that the outcome would have changed.'" (Quoting Stomps v. Persson, 305 Or.App. 47, 56, 469 P.3d 218 (2020).) Under the Sixth Amendment to the United States Constitution, prejudice is shown when the facts established by a preponderance of the evidence show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," with "reasonable probability" defined as "a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner has not established prejudice under either the state or federal standards. Accordingly, the post-conviction court did not err.
Affirmed.