Background
In 2018, Brett George Kleng was charged with 18 counts of various sex crimes against three minor victims. Following trial, he was convicted on all counts, including first-degree unlawful sexual penetration (ORS 163.411) and first-degree sexual abuse (ORS 163.427) based on evidence that he sexually abused his 14-year-old stepdaughter while pretending to massage her injured leg. The evidence showed he was larger and older than the victim, who said “no” twice and ultimately had to push his hands away and retreat against a wall before he stopped. Kleng also entered an Alford plea to a separate count involving a different victim that had been set for a second trial.
After an unsuccessful direct appeal, Kleng filed a petition for post-conviction relief in Umatilla County Circuit Court raising multiple claims of constitutionally inadequate and ineffective assistance of trial counsel. The post-conviction court denied all claims with written findings. Kleng then appealed, represented by counsel on one claim and filing seven additional assignments of error pro se.
The Court’s Holding
The Oregon Court of Appeals affirmed the denial of post-conviction relief on all eight claims. On the lead counseled claim — that trial counsel was ineffective for failing to move for a judgment of acquittal on the forcible compulsion element — the court held that Kleng could not demonstrate any reasonable probability that such a motion would have been granted. Based on the trial evidence (the victim’s confined position against a wall, the size disparity, the victim’s verbal refusals, and penetration with enough force to cause pain), the court concluded a reasonable factfinder could find forcible compulsion as defined under Oregon law.
On the seven pro se claims, the court rejected each in turn. Counsel’s decisions not to suppress Kleng’s police interview (which contained repeated denials useful to avoid petitioner testifying), and not to object to certain vouching testimony, were upheld as informed strategic choices virtually unchallengeable under Strickland v. Washington. The court found no improper prosecutorial comment on Kleng’s right not to testify and that the state’s closing argument regarding prior-acts evidence was offered for a proper non-propensity purpose. Claims regarding failure to request a unanimity instruction or jury poll were rejected under binding precedent, and the post-conviction court’s credibility findings supporting the voluntariness of the Alford plea were upheld as supported by the record. Finally, the court reaffirmed that cumulative error is not an independent ground for post-conviction relief in Oregon.
Key Takeaways
- Forcible compulsion under ORS 163.411 and ORS 163.427 does not require violent or dominating force — force that is greater than or qualitatively different from mere contact, and sufficient to compel submission against the victim’s will, is enough; a size disparity, confined space, verbal refusals, and painful penetration can collectively satisfy the element.
- Trial counsel’s strategic decision to keep a police interview in evidence — allowing the defendant’s denials to reach the jury without exposing him to cross-examination — is a quintessential informed tactical choice that is “virtually unchallengeable” under Strickland.
- Cumulative error remains unavailable as a standalone post-conviction claim in Oregon. Vega-Arrieta v. Blewett, 331 Or App 416 (2024).
- Post-conviction courts’ credibility determinations are binding on appellate review if supported by the record, making it very difficult to overturn findings that counsel was credible and petitioner was not on disputed facts about plea advice.
Why It Matters
This decision reinforces the high bar petitioners face when challenging trial counsel’s strategic decisions in Oregon post-conviction proceedings. The court’s analysis of the forcible compulsion element provides useful guidance to practitioners, confirming that the totality of circumstances — including the relationship, physical disparity, victim’s protests, and degree of force — is assessed holistically rather than requiring overtly violent conduct.
The ruling also serves as a reminder that retaining potentially damaging evidence for legitimate strategic reasons (here, to introduce a client’s own denials without calling him to testify) will ordinarily insulate counsel from ineffectiveness claims, even when the strategy ultimately fails. Defense practitioners and post-conviction attorneys should note the court’s reaffirmation that Oregon does not recognize cumulative error as an independent PCR ground.