Ogle v. Nooth

                                 120

  Submitted on remand from the Oregon Supreme Court January 16, 2020,
                        affirmed August 18, 2021


                KEITH KENDON OGLE,
                  Petitioner-Respondent,
                             v.
                      Mark NOOTH,
                     Superintendent,
            Snake River Correctional Institution,
                   Defendant-Appellant.
               Malheur County Circuit Court
                   10108394P; A160243
                             

  On remand from the Oregon Supreme Court, Ogle v.
Nooth, 

, 

 (2019).
  William M. Horner, Senior Judge.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for appellant. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Solicitor General.
   Jason Weber argued the cause for respondent. With him
on the brief was O’Connor Weber LLC.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2021)                             121

        PER CURIAM
         The post-conviction court granted petitioner post-conviction relief on his claim that his trial counsel performed
inadequately by failing to hire an investigator to interview
a witness before trial. On the superintendent’s appeal,
we reversed, concluding that petitioner had not properly
pleaded the claim on which the post-conviction court had
granted relief. Ogle v. Nooth, 

, 

 (2018). The Supreme Court disagreed with our conclusion, reversed our decision, and remanded for us to consider
the superintendent’s second assignment of error, which we
did not reach in our first decision. Ogle v. Nooth, 

, 

 (2019).
         Having reviewed the briefing on the second assignment of error, the relevant portions of the record, and the
applicable law, we affirm. In doing so, we note that a more
detailed discussion of the facts and our analysis in this particular case would not significantly benefit the bench, the
bar, or the public.
         In his second assignment of error, the superintendent contends that the post-conviction court erred in determining that petitioner was prejudiced by counsel’s inadequacy in failing to have an investigator interview, before
trial, the only witness to the altercation between petitioner
and the victim. We conclude that, given the evidence, viewed
in the light most favorable to the post-conviction court’s
determination that petitioner was prejudiced by counsel’s
inadequate performance, see Lichau v. Baldwin, 

, 

 (2002) (citing Ball v. Gladden, 

, 

 (1968)), the court correctly concluded that
counsel’s inadequate performance “could have tended to
affect the outcome of the trial.” Green v. Franke, 

, 

 (2015) (internal quotation marks omitted).
We therefore affirm.
        Affirmed.