Background
Bradley S. Sumner appealed the denial of his 2020 petition for post-conviction relief arising from a 2004 criminal trial. His convictions became final in 2007, and an earlier post-conviction proceeding ended unsuccessfully. Sumner did not dispute that the petition at issue was filed after the limitations period and was successive, but he argued that statutory escape clauses permitted review.
Sumner alleged that trial counsel was constitutionally inadequate for failing to object to an instruction permitting a guilty verdict when 10 or more jurors agreed, failing to poll the jury, and failing to request an instruction requiring juror concurrence on whether he acted as a principal or accomplice during robberies committed with another person. In a pro se supplemental brief, he also claimed that direct-appeal counsel should have asserted plain error based on the absence of a concurrence instruction.
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that trial counsel was not ineffective for failing to challenge the nonunanimous-jury instruction or poll the jury before the U.S. Supreme Court decided Ramos v. Louisiana. Existing Oregon decisions established that counsel acted reasonably by following controlling precedent and was not required to anticipate a fundamental change in the law. Because that claim failed on the merits, the court did not decide whether it was procedurally barred.
The court also held that trial counsel acted reasonably in declining to request a principal-or-accomplice concurrence instruction because the governing law was unsettled in 2004. Appellate counsel likewise was not ineffective for declining to raise the unpreserved concurrence issue as plain error when it likely would have failed under the law then in effect. The court rejected Sumner’s undeveloped structural-error contention.
Key Takeaways
- Counsel was not ineffective for failing, before Ramos, to challenge Oregon’s then-valid nonunanimous-verdict practice or request a jury poll.
- Trial counsel generally need not anticipate later legal developments when the relevant law is unsettled at the time of trial.
- Appellate counsel’s failure to raise an unpreserved issue as plain error ordinarily does not constitute inadequate assistance, particularly when the argument likely would have failed under then-existing law.
Why It Matters
The nonprecedential decision reinforces Oregon cases measuring counsel’s performance against the law existing when counsel acted, rather than against later doctrinal changes. It also illustrates that courts may affirm a post-conviction denial on the merits without resolving asserted exceptions to timeliness and successive-petition bars.