]" The doctrine of "presumed prejudice"—referred to as "structural error" in more recent cases—"has not been adopted * * * as an aspect of Oregon law." Ryan v. Palmateer , 338 Or. 278, 295, 297 n. 9, 108 P.3d 1127, cert. den. , 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) ; see alsoSimonsen v. Premo , 267 Or.App. 649, 659 n. 5, 341 P.3d 817 (2014), rev. den. , 357 Or. 324, 354 P.3d 696 (2015) ("Oregon has not adopted the doctrines of structural error and presumed prejudice."). The doctrine is also inapplicable to petitioner's claim of ineffective assistance under the Sixth Amendment.
We reject defendant's "structural error" argument without extended discussion. In Ryan v. Palmateer , 338 Or. 278, 295-97, 108 P.3d 1127, cert. den. , 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005), a case involving Article I, section 11, the court undertook an extensive discussion as to why "structural error" is not a useful analytical tool in assessing Oregon constitutional issues, concluding that, in light of Article VII (Amended), section 3, of the Oregon Constitution, the court "must affirm a judgment, despite any error committed at trial, if, after considering all the matters submitted, the court is of the opinion that the judgment ‘was such as should have been rendered in the case.’ " Id. at 296, 108 P.3d 1127 (quoting Davis , 336 Or. at 28, 77 P.3d 1111 ); see alsoid. at 296-97, 108 P.3d 1127 ("Under Article VII (Amended), section 3, the test for affirmance despite error consists of a single inquiry: ‘Is there little likelihood that the particular error affected the verdict?
Even in the federal post-conviction context, the United States Supreme Court has held that, "[w]hen a structural error is raised in the context of an ineffective-assistance claim[,]" "finality concerns" require a petitioner to "show prejudice in order to obtain a new trial," unless the ineffective assistance amounts to a constructive denial of counsel. Weaver v. Massachusetts , 582 U.S. ––––, ––––, 137 S. Ct. 1899, 1913, 198 L. Ed. 2d 420 (2017) ; Ryan v. Palmateer , 338 Or. 278, 299, 108 P.3d 1127 (2005) ("A [petitioner] who chooses to assert a Sixth Amendment ineffective assistance of counsel claim without proving prejudice must demonstrate that trial counsel's errors were so egregious as to amount to a constructive denial of counsel[.]"). A constructive denial of counsel means that "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing" "throughout the * * * proceeding[s] as a whole."
No Oregon appellate court has endorsed application of a cumulative-error analysis in post-conviction claims, and the United States Supreme Court has not adopted the approach. SeeRyan v. Palmateer, 338 Or. 278, 290, 108 P.3d 1127, cert. den., 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) (rejecting as incompatible with Oregon law the petitioner's contention that "trial counsel's errors, taken together, were so egregious that he should be granted a new trial without" being required to show actual prejudice, "because the entire underlying trial was infected with ‘structural error.’ "); id. at 298-99, 108 P.3d 1127 (explaining that, although "structural error"—error in which prejudice is presumed—is a viable theory under federal law in some circumstances, the United States Supreme Court has limited its application in the ineffective assistance of counsel context to cases in which the attorney's failure is so complete as to amount to a constructive denial of the right to counsel altogether).
Our courts, however, have rejected the concept of “structural error” under our state's constitution. Ryan v. Palmateer, 338 Or. 278, 294–97, 108 P.3d 1127, cert. den.,546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) (rejecting petitioner's argument for “structural error” when he could show no prejudice). The Oregon Supreme Court has explained that the concept obscures the analysis of whether legal error was prejudicial or harmless. Id. at 296, 108 P.3d 1127. Worse yet, notions of “structural error” are “not consistent with Article VII (Amended), section 3, of the Oregon Constitution,” which requires that we “ ‘must affirm a judgment, despite any error committed at trial, if, after considering all the matters submitted, the court is of the opinion that the judgment was such as should have been rendered in the case.’ ”
Sup. Ct. Ore. Certiorari denied. Reported below: 338 Ore. 278, 108 P. 3d 1127.
And, while acknowledging that this court has not expressly adopted a similar presumption of prejudice in the ineffective-assistance-of-counsel context under Article I, section 11, petitioner notes that this court has stated, with respect to trial and appellate error in general, that the showing that is needed to satisfy the prejudice requirement will vary depending on the nature of the error. Ryan v. Palmateer , 338 Or. 278, 297, 108 P.3d 1127, cert. den. , 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005). Petitioner suggests that, under that general rule, when counsel's ineffective performance deprives the defendant of an appeal, the loss of the appeal is sufficiently prejudicial, in and of itself, that there should be no requirement of an additional showing that the ineffectiveness had a tendency to affect the ultimate outcome.
Defendant's reliance of Meyrick is not well taken. Defendant also relies on Ryan v. Palmateer, 338 Or 278, 108 P3d 1127 (2005), but that case involved alleged "structural errors" in a criminal proceeding in which an accused person actually had counsel. We find nothing in that case that is helpful to defendant here.
I understand those to be separate inquiries. See Ryan v. Palmateer , 338 Or. 278, 295-97, 108 P.3d 1127, cert. den. , 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) (discussing why "structural error" is not a useful analytical tool and adhering to the harmless error standard articulated in Davis ); State v. Barone , 329 Or. 210, 226, 986 P.2d 5 (1999), cert. den. , 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) (explaining that the court "has not adopted the doctrine of ‘structural’ or ‘systemic’ error in analyzing questions of Oregon law"). Indeed, the majority opinion's interpretation of the statutory requirement for personal prehearing notice as an unwaivable right that cannot be remedied by, for example, an appellant requesting additional time to prepare for the hearing is inconsistent with how we have treated the similar notice requirement in criminal proceedings.
There are, however, some areas where the state and federal standards differ. Compare Ryan v. Palmateer , 338 Or. 278, 295-97, 108 P.3d 1127, cert. den. , 546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) (rejecting structural error and presumed prejudice doctrines) with United States v. Cronic , 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984) (presuming prejudice where a defense counsel failed to function in any meaningful sense). We examine the state and federal claims of inadequate assistance and ineffective assistance separately because petitioner’s claim under Article I, section 11, of the Oregon Constitution is, as explained below, foreclosed by a prior decision.