Hale v. Belleque
Case #: A143075
Wollheim, P.J. for the Court; Haselton, C.J.; Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A143075A.pdf
Post-Conviction Relief: If an issue was not raised before the post-conviction court it cannot be considered on appeal. In addition it is sufficient to establish prejudice in the context of post-conviction relief if there is uncertainty regarding what elements were agreed to and use by the jury.
In a post-conviction proceeding, Mr. Hale attempted to have multiple convictions reserved due to inadequate counsel. The post-conviction court rejected Mr. Hale’s arguments. However, the appellate court reversed and remanded two burglary convictions. Mr. Hale and the state both petition for reconsideration of the court’s decision. During the sentencing phase of Mr. Hale’s trial, the jury was given instructions on aiding and abetting and the corresponding responsibility that comes with the “natural and probable consequences” of the intended crime. In his claim for post-conviction relief, Mr. Hale claims that his counsel was inadequate for not objecting to the jury instruction. The court rejected this argument. Mr. Hale petitions for reconsideration to the “natural and probable consequences” instruction. He states that court failed to consider his stand alone claim that that instruction itself was inadequate. The court holds that this issue was not raised before the post-conviction court therefore cannot be considered on appeal. Despite the fact that the court had previously ruled that the instruction given was inadequate, the issue was not preserved. The state petitions the court to reconsider claiming the court used an incorrect standard for assessing prejudice. The state contends that Mr. Hales does not establish prejudice because the jury verdicts were unanimous. They believe there is only a theoretical possibility that the verdicts were less than unanimous which is not sufficient to establish prejudice. The court holds that it is sufficient to establish prejudice in the context of post-conviction relief if there is uncertainty regarding what elements were agreed to and use by the jury. Reconsideration Allowed; former opinion adhered to.