Perkins v. Keeney

PER CURIAM Petitioner seeks review of a trial court judgment dismissing his petition for post-conviction relief. He contends that the post-conviction court erred in determining that he had not been denied effective assistance of counsel when his trial counsel in the underlying case failed to object to the trial court’s instruction regarding lesser included offenses. The trial court instructed the jury: “Now if you find that the defendant is not guilty of Murder under either theory, you should consider whether the defendant is guilty of Manslaughter in the First Degree. “Now, in respect to that charge, if you reach that point, that is if you find defendant not guilty of Murder, why, then you move to Manslaughter in the First Degree.” That instruction required the jury to find petitioner not guilty of the greater offense before considering the lesser-included offense. That was error. State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978). The rule of law stated in Ogden was announced three years before petitioner’s trial. Therefore, petitioner’s counsel’s failure to object to the instruction amounted to ineffective assistance of counsel. Peaslee v. Keeney, 81 Or App 488, 492, 726 P2d 398 (1986), rev den 302 Or 571 (1987); see also State v. Allen, 301 Or 35, 38, 715 P2d 94 (1986). Reversed and remanded.