5
Argued and submitted April 2, reversed and remanded with instructions to grant
youth’s motion to set aside the adjudication December 1, 2021
In the Matter of C. L. E.,
a Youth.
STATE OF OREGON,
Respondent,
v.
C. L. E.,
Appellant.
Lane County Circuit Court
08307J;
Petition Number 08307J02;
A171787
502 P3d 1154
Youth appeals a juvenile court order denying his motion to set aside his adjudication for acts that, if committed by an adult, would constitute attempted sexual
abuse in the first degree. ORS 419C.615; ORS 163.427(1)(a)(A); ORS 161.405(1)(c).
Youth contends that his adjudication was in violation of his state and federal
constitutional rights because (1) youth was not competent to be adjudicated at
the time that he entered his plea; and (2) youth’s trial counsel rendered inadequate and ineffective assistance by failing to have youth’s competency evaluated.
Held: Trial counsel rendered constitutionally inadequate assistance of counsel by
not having youth’s competency evaluated before advising youth to enter a plea.
Reversed and remanded with instructions to grant youth’s motion to set aside
the adjudication.
R. Curtis Conover, Judge.
Christa Obold Eshleman argued the cause for appellant.
Also on the brief was Youth, Rights & Justice.
Joanna Hershey, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Robert M. Wilsey, Assistant Attorney General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded with instructions to grant youth’s
motion to set aside the adjudication.
6 State v. C. L. E.
LAGESEN, P. J.
Youth, whose intellectual function is at a level equal
to or better than only 0.5 percent of his peers, appeals from
a juvenile court order denying his motion to set aside his
adjudication for acts that, if committed by an adult, would
constitute attempted sexual abuse in the first degree.
ORS 419C.615; ORS 163.427(1)(a)(A); ORS 161.405(1)(c).
Youth contends that his adjudication—which resulted
from a plea—was in violation of his state and federal constitutional rights because (1) youth was not competent to
be adjudicated at the time that he entered his plea; and
(2) youth’s trial counsel rendered inadequate and ineffective assistance by failing to have youth’s competency evaluated. The juvenile court rejected those contentions but we
conclude that trial counsel rendered constitutionally inadequate assistance of counsel by not having youth’s competency evaluated before advising youth to enter a plea.
Accordingly, we reverse the juvenile court’s denial of youth’s
motion to set aside the adjudication and remand for further
proceedings.
We review the juvenile court’s determination for
legal error and we are bound by the court’s factual findings
if they are supported by the evidence in the record. State v.
J. J.-M., 282 Or App 459, 461,
387 P3d 426 (2016). To the
extent that the court did not make explicit factual findings,
we presume that it would have found those facts consistent
with its ultimate legal conclusions.
Id.
In evaluating youth’s contentions on appeal under
ORS 419C.615, we apply the constitutional standards for
inadequate and ineffective assistance of counsel that have
been developed at the state and federal levels in the context
of post-conviction and habeas corpus relief. Id. at 463 (citing
State ex rel Juv. Dept. v. Jones,
191 Or App 17, 23,
80 P3d
147 (2003)). As relevant here, both Article I, section 11, of
the Oregon Constitution and the Sixth Amendment to the
United States Constitution guarantee a criminal defendant
the right to the adequate and effective assistance of counsel.
Montez v. Czerniak,
355 Or 1, 6,
322 P3d 487, adh’d to as
modified on recons,
355 Or 598,
330 P3d 595 (2014); see also
Strickland v. Washington,
466 US 668, 686,
104 S Ct 2052,
Cite as
316 Or App 5 (2021) 7
80 L Ed 2d 674 (1984) (United States Constitution requires
the “effective” assistance of counsel).
To prevail on his claims regarding the adequacy of
counsel under the Oregon Constitution, youth must prove
both that counsel “failed to exercise reasonable professional
skill and judgment and that [he] suffered prejudice as a
result.” Hale v. Belleque, 255 Or App 653, 659,
298 P3d 596,
adh’d to on recons,
258 Or App 587,
312 P3d 533, rev den,
354
Or 597 (2013) (citing Trujillo v. Maass,
312 Or 431, 435,
822
P2d 703 (1991)). A functionally equivalent standard governs
a claim of ineffective assistance of counsel under the Sixth
Amendment. Johnson v. Premo,
315 Or App 1, 8,
499 P3d
814 (2021). We state the relevant facts, which are largely
undisputed, in view of those standards.
Youth has spent most of his life within the jurisdiction of the juvenile court. Department of Human Services
(DHS) became involved in youth’s care shortly after he was
born in 2000 due to concerns of neglect. Youth showed signs
of slow development nearly from the beginning of his life.
After living primarily under his grandmother’s care, youth
was placed in foster care when he was seven years old and
was found to be within the court’s jurisdiction in 2008. DHS
removed him from his grandmother’s and parents’ care after
determining that his parents’ developmental disabilities
interfered with their ability to care for their child, and that
youth had special needs for which his parents and grandmother were unable to provide.
Youth consistently has been diagnosed as intellectually disabled since 2005. In 2008, youth was placed in
skilled foster care where he could be treated for his ongoing aggressiveness. At that time, he was diagnosed with
“Oppositional Defiant Disorder; Pervasive Developmental
Disorder, NOS; Enuresis; Parent-Child Relational Problems;
and Mild Mental Retardation.” In 2009, an extensive evaluation was conducted which confirmed many of those diagnoses. Around this time, he scored between 51 and 68 on Full
Scale IQ tests, which are tests commonly used to gauge an
individual’s cognitive functioning. Youth’s scores reflected
“extremely low” cognitive functioning.
8 State v. C. L. E.
Youth was arrested in 2014 and alleged to be within
the juvenile court’s delinquency jurisdiction for sexual misconduct. At the time of his arrest, youth was 13 and living in
a “highly skilled foster home to help meet his developmental
disability needs.” The probable cause affidavit in support of
the warrant for youth’s arrest noted that youth was “seeing
a psychologist who has diagnosed him as having a developmental disorder and that he functions at the level of an eight
year old, that he has an unspecified impulse control disorder
….”
An attorney from the Public Defender Services of
Lane County (PDS) was appointed to represent youth in
the delinquency case; youth’s lawyer in the dependency case
worked in the same office. The delinquency attorney discussed the police reports with youth. She thought that youth
“knew what [she] was talking about and he knew what he
did.” Based on those interactions, she did not question youth’s
competency and she did not seek to have it evaluated.
Prior to the appointment of counsel for youth’s delinquency case, youth signed a handwritten note that detailed
his allegedly delinquent actions, apparently obtained by a
DHS investigator. More than a month after his attorney was
appointed, youth entered an admission in juvenile court to
Attempted Sexual Abuse in the First Degree. Based on that
admission, the juvenile court took delinquency jurisdiction
over youth. The same day that youth signed the admission
in juvenile court, he also signed a juvenile case plan with a
list of goals intended to “ensure community protection, fulfill obligations to the victim and community, clarify expectations and court ordered conditions, and help youth and family be successful.” One goal indicated on this document is
that youth “will participate in a mental health assessment
and follow the recommendations of the treatment provider.”
There is no indication that such an assessment or further
recommendations were undertaken in that time period. The
juvenile court filed its judgment of jurisdiction and disposition about a week later, ordering up to five years of probation, continued supervision by Lane County Department
of Youth Services, and registration with the Oregon State
Police. Youth had turned 14 by the time of the adjudication.
Cite as 316 Or App 5 (2021) 9
Following his adjudication, youth’s delinquency
attorney and subsequent attorneys from PDS represented
him through multiple probation violation proceedings until
October 2018, when the office was permitted to withdraw
from his representation due to a conflict. That conflict
arose after one of his attorneys questioned youth’s ability
to understand the delinquency proceedings. The attorney
sought an evaluation of youth’s current competency, as well
as a retroactive assessment of his competency at the time
of adjudication. The evaluating psychologist concluded that
youth lacked the abilities to understand the nature of legal
proceedings, to assist and cooperate with counsel, and to
participate in his own defense, and, “to a reasonable degree
of certainty that if [the psychologist] had evaluated [youth]
in 2014, [she] would have found him unfit to proceed.” Given
the evaluator’s determination that youth had not been
competent in 2014, and the conflict that created for PDS,
which had represented youth at that time, new counsel was
appointed to represent youth.
A different evaluation conducted in the same year
by an Oregon Youth Authority psychologist reached a similar conclusion. It found that youth “does not understand situations clearly,” and “does not understand a lot of the words
that are presented to him and yet tries to appear knowledgeable.” Around the same time, youth was given another
Full Scale IQ test. His score was 61, placing him at the same
level or better than only 0.5 percent of his peers. Youth’s
2018 score was within the range of scores that resulted from
his 2008 and 2009 testing.
In 2019, with the assistance of new counsel, youth
petitioned for a juvenile court to set aside his 2014 adjudication under ORS 419C.615. Youth’s new counsel alleged
a substantial denial of youth’s constitutional rights in
the proceedings because youth was not competent at the
time of adjudication and because he had received ineffective assistance of counsel due to his delinquency
attorney’s failure to investigate his competency at the
time of his arrest, plea, and adjudication. After a hearing, the juvenile court denied the motion to set aside the
adjudication.
10 State v. C. L. E.
In its order, the juvenile court found (1) that youth
had not been unfit to proceed, and (2) that there had otherwise been no “substantial denial in the proceedings or of
the youth’s rights, pursuant to ORS 419C.615[.]” The court
reasoned that the attorney’s impressions at the time of the
adjudication—through her observations of youth—were
a more reliable indication of youth’s competency than the
2018 psychological evaluation. The court also found that the
record referenced a “decline” in 2016, whether behavioral or
cognitive, making the 2018 evaluation less reliable. Finally,
the court noted that youth had been before multiple judges
for probation violation and other hearings between the 2014
adjudication and the post-conviction proceedings, and questions of his competency had not been raised at any point
before 2018, inferring from that the absence of issues with
competency. Based on those facts, the court concluded that
youth had not demonstrated grounds to set aside the adjudication. Youth appealed.
On appeal, he contends that the juvenile court
erred both in concluding that he was competent to enter an
admission in 2014, and in concluding that his lawyer was
not inadequate for failing to seek a competency evaluation.
He also argues that, to the extent the juvenile court found
that there had been a decline in his competency between
2014 and 2018, there is no evidence in the record to support
that finding. The state responds that, given its factual findings, the juvenile court properly denied the motion.
We start and end with youth’s contention that he
is entitled to relief on his claim of trial counsel inadequacy,
concluding that he is. Starting with the performance prong
of youth’s claim, the issue is whether the facts found below
demonstrate that “counsel’s decision reflects an absence of
professional skill and judgment, a question that turns on
the facts known at the time that counsel made that decision.” Davis v. Kelly, 303 Or App 253, 262,
461 P3d 1043,
rev den,
366 Or 826 (2020) (internal quotation marks and
brackets omitted).
Applying that standard to the facts here, we conclude that trial counsel’s failure to have youth’s competency
evaluated was not the product of reasonable professional
Cite as 316 Or App 5 (2021) 11
skill and judgment. In view of the performance standard
for lawyers representing juveniles and the information
about juvenile competency at the time, and in view of the
specific information about youth available to counsel, counsel’s choice to rely on her interactions with youth to evaluate competency reflects an absence of professional skill and
judgment.
As an initial matter, in light of the standards for
representing juveniles and the information available about
juveniles’ capacity for decision-making, given youth’s age,
the nature of the offense, and the lifetime consequences
of admitting to a sex offense in the juvenile court,1 it was
not reasonable for counsel to base her assessment of youth’s
competency to enter a plea on her conversations with youth,
standing alone. See Restatement of Children and the Law
(Tent Draft No. 2) § 15.30 & comment d (Mar 20, 2019)
(addressing the need for case-specific assessment of a juvenile’s competency to be adjudicated delinquent, including
need for assessing decision-making capacity in context of
delinquency plea process); Oregon State Bar, Report of the
Task Force on Standards of Representation in Criminal and
Juvenile Delinquency Cases (OSB Standards) 18-20 (Apr 24,
2014) (listing the sources of information an attorney should
consult when representing a juvenile, including school, mental health, medical, and other records).
To enter a valid admission or plea to delinquency
jurisdiction, a youth “must be apprised of and understand
the legal consequences of his admission of jurisdiction.” State
ex rel Juv. Dept. v. Welch, 12 Or App 400, 412,
507 P2d 401
(1973). Whether a youth is capable of the requisite understanding “should vary depending on the circumstances of
the case, the age and intelligence of the child, as well as
other factors which we decline to attempt to enumerate.” Id.;
see ORS 419C.378(1)(a) (youth may be unfit to proceed in
delinquency proceeding if “as a result of a qualifying mental disorder or another condition” the “youth is unable …
1
As a result of his admission, youth would be subject to lifetime registration
as a sex offender, unless relieved of that obligation by the juvenile court. Former
ORS 181.809 (2013), amended by Or Laws 2015, ch 820, § 8, renumbered as ORS
163A.025(2015), amended by Or Laws 2016, ch 95, § 1, amended by Or Laws 2019,
ch 430, § 14.
12 State v. C. L. E.
[t]o understand the nature of the proceedings against the
youth[.]”). Said another way, whether a juvenile is competent
to knowingly and voluntarily enter a plea in the context of
a delinquency proceeding, particularly where, as here, the
plea will have long-term consequences, depends largely on
the particular juvenile’s developmental maturity, something
difficult to assess without some expertise. See, e.g., Exhibit 8,
House Committee on Judiciary, HB 2836, Apr 9, 2013, at 6-7
(Juvenile Aid and Assist Report). As comment d to section
15.30 of the Restatement explains:
“A key component of competence to make a consequential
plea decision is future orientation, the ability and inclination to understand the future consequences of choices, and
to weigh the available options adequately. If either acceptance or rejection of a plea decision can potentially impact
the future life of the juvenile in harmful ways, it is important that the juvenile understand and consider those remote
consequences. The developmental research indicates that
this capacity improves over the course of adolescence.
Younger adolescents are less inclined to consider future consequences than older adolescents and adults, and are more
inclined to overvalue immediate consequences. Further,
even when they do consider the future, younger adolescents
are more likely to discount future risks and benefits and to
focus on the short-term consequences of decisions.”
Consistent with our long-ago recognition in Welch that,
with a juvenile, competency might vary from case to case,
the Restatement recognizes the equivalent point that the
same youth may be competent to be adjudicated delinquent
in some cases but not others: “Thus, an individual might
be competent to proceed in a proceeding involving a minor
offense with straightforward evidence, little procedural
complexity, and modest sanctions who would be incompetent
under other circumstances.” Restatement (Tent Draft No. 2)
§ 15.30 & comment c. Consequently, the same youth may
require a formal competency evaluation in some cases and
not in others, depending on the complexity of the case and
the available evidence of the youth’s ability to understand
that case.
While the contours of juvenile competency are
highly context dependent, a lawyer’s obligation to assess her
Cite as 316 Or App 5 (2021) 13
juvenile client’s competency is unchanging. Said another
way, while what is required to demonstrate juvenile competency may vary with the nature of a particular delinquency
proceeding, a lawyer’s obligation to evaluate competency
against that relevant standard remains a constant. At the
time counsel was advising youth in connection with his plea,
a lawyer exercising reasonable skill and professional judgment would have recognized as much; that is, would have
recognized that evaluating youth’s competency to enter
this plea required something more than talking with him
like she would an adult. At the time, it was widely accepted
that “juvenile defense [is] a specialized practice requiring specialized skills.” National Juvenile Defender Center,
National Juvenile Defense Standards (NJDS) 9 (2012). An
Oregon State Bar Task Force had acknowledged “a growing recognition that the role of a juvenile defender is highly
specialized and complex, requiring knowledge and skills
unique to delinquency cases in addition to those required
in adult criminal cases.” OSB Standards at 2. Further, it
was recognized that lawyers representing juveniles needed
to be closely attuned to potential issues with competency
that are not present with adult clients: “[l]awyers need to
be especially sensitive to the competence of juvenile clients. Children may be incompetent for a variety of reasons.”
NJDS at 30; see also OSB Standards at 26 (“[A] client’s ability to aid and assist in the proceedings may be compromised
due to mental health disorders, developmental immaturity
or developmental and/or intellectual disabilities.”).
In addition to these standards, Welch and at least
a decade’s worth of available research would have alerted a
reasonable juvenile attorney in counsel’s position that the
attorney needed to carefully assess whether her client was
competent to proceed. It had been more than 40 years since
we recognized that a youth’s age and intelligence need to
be taken into account in assessing whether the youth has
the necessary level of understanding to enter an admission
to delinquency jurisdiction. Petitioner was only 13 years old
at the time of the conduct at issue, and 14 at the time of
his plea. As petitioner points out here, more than 10 years
before petitioner’s plea, the MacArthur Foundation had concluded from a five-year study that “about one third of 11- to
14 State v. C. L. E.
13-year-olds and one-fifth of 14- to 15-year-olds probably are
not competent to stand trial.” Laurence Steinberg, Juveniles
on Trial: MacArthur Foundation Study Calls Competency
into Question, 18 Crim Just 20, 23 (Fall 2003). A 2005 guideline for evaluating youth competency produced as a result
of that study noted that developmental immaturity, a fundamental difference between youth and adults, can have
the same consequences on a youth’s ability to meaningfully
assist counsel and understand proceedings as mental illness
in adults. Thomas Grisso, Clinical Evaluations for Juveniles’
Competence to Stand Trial: A Guide for Legal Professionals,
40 (2005). That is because maturity impacts a youth’s ability to make logical inferences and contemplate the consequences of their actions. Steinberg, 18 Crim Just at 23.
Finally, not only was the need for juvenile lawyers
to exercise special attentiveness to issues of competency well
known at the national level at the time of youth’s adjudication, the unique task of representing youth—and the need
to maintain a keen eye on the necessity for a formal evaluation of a young client’s competency—had recently been
addressed by the Oregon legislature, leading to HB 2836
(2013). The bill resulted from the distinction between youth
competency and adult competency and the recognition that
existing Oregon law on evaluating competency failed to provide for that distinction. See Exhibit 8, House Committee
on Judiciary, HB 2836, Apr 9, 2013, at 3-5 (Juvenile Aid
and Assist Report). The working group’s report points out
that with the introduction of HB 2836, later codified as ORS
419C.378, the main difference between competency law for
adults and for youth is that finding an adult unfit to proceed
may be based on “a mental disease or defect,” whereas finding a youth unfit to proceed may be based on “mental disease
or defect or another condition.” Id. at 6 (emphasis in original). A primary condition uniquely relevant to juveniles,
as discussed, is developmental immaturity. Furthermore,
the working group’s report, as reflected in the resulting
law, highlights the importance of any party in a proceeding
being able to raise concerns for a youth’s competency and
recognized that “only licensed psychiatrists, psychologists,
or clinical social workers may conduct evaluations to determine a youth’s fitness to proceed.” Id. at 6-7.
Cite as 316 Or App 5 (2021) 15
Against that backdrop, and taking into account
the specific facts about youth’s developmental maturity that
would have been readily available to counsel, counsel’s decision to proceed without an even rudimentary investigation
of youth’s intelligence and decision-making capacity reflects
an absence of professional skill and judgment. As noted,
the probable cause affidavit, which all reasonable lawyers
would have reviewed as a matter of course in evaluating
their client’s case,2 stated that youth had been diagnosed
as developmentally disabled and functioned at the level of
an eight-year-old. Proceeding to a plea to facts constituting a felony sex offense without obtaining a competency
evaluation, in the face of information that a client has the
capacity of an eight-year-old, represents an absence of profession skill and judgment. There would have been very little reason to think that an eight-year-old would have had
the necessary maturity to understand the consequences
of the plea that youth accepted here, making it unreasonable for counsel to not have youth evaluated. Similarly,
the other information available to counsel about her client
through the dependency case—handled by her own office—
leads to the same conclusion. That information, none of
which points to youth having the ability to understand, in
any meaningful way, the adjudicative process or the consequences of entering a plea to delinquency jurisdiction,
also leads to the conclusion that counsel’s failure to have
youth’s competency evaluated represents an absence of professional skill and judgment. Simply put, the information
available gave no reason to think that youth was competent,
and any lawyer exercising reasonable professional judgment
would have looked into the issue further and would not have
elected to evaluate the issue solely through discussions with
youth.
2
See, e.g., OSB Standards at 19 (“A lawyer should obtain copies of all
charging documents and should examine them to determine the specific charges
that have been brought against the client. … A lawyer should attempt to interview all law enforcement officers involved in the arrest and investigation of the
case and should obtain all pertinent information in the possession of the prosecution, juvenile authorities, or law enforcement. … Where appropriate, a lawyer
should obtain school, mental health, medical, drug and alcohol, immigration, and
prior criminal offense and juvenile records of the client and witnesses. … A
skilled and knowledgeable lawyer will be of little use to a client without a thorough understanding of the facts of a case.”).
16 State v. C. L. E.
The remaining question is whether youth was prejudiced by counsel’s failure. In cases where the adjudication is based on a plea, the prejudice requirement focuses
on whether trial counsel’s constitutionally inadequate performance affected the outcome of the plea process. Moen v.
Peterson, 312 Or 503, 512-13,
824 P2d 404 (1991). To establish prejudice, the petitioner must show that but for the inadequate and ineffective assistance, he would have pleaded
differently. Green v. Franke,
357 Or 301, 323 n 13,
350 P3d
188 (2015) (citing Moen,
312 Or at 513); see also Trujillo,
312
Or at 437 (framing prejudice inquiry in terms of whether
the petitioner “would have withdrawn his plea” if counsel’s
advice had been adequate).
Here that standard is met. If the attorney had
youth’s competency evaluated, the record allows for one
conclusion: youth would not have been permitted to enter
his admission. See Welch, 12 Or App at 408 (“[A] juvenile
can waive his [or her] constitutional rights if the waiver is
knowingly, understandingly, and voluntarily made.”). Every
formal evaluation of youth’s mental capacity contained
in this record uniformly demonstrates that youth is low-functioning—including findings of a low vocabulary, concrete thinking,3 and poor comprehension. For example,
during youth’s 2018 psychological evaluation—the only evidence in the record of an attempt to gauge youth’s understanding of the proceedings—the doctor attempted to
explain a plea bargain, and youth was unable to retain the
concept. That discussion revealed that youth has no concept
of what a “right” is and believed that he has to answer any
“question the judge asks.” Youth stated that “a plea of guilty
is ‘that you did it’ and that not guilty ‘is that you didn’t do
it.’ ” With regard to plea bargaining, youth conveyed that
all choices led to going to “lock up.” Given that measure of
youth’s understanding, counsel would have determined that
youth was not competent or that there were such serious
questions about competency, that counsel would not have
permitted youth to enter his plea. Failing that, a juvenile
3
The American Psychological Association defines concrete thinking as
“thinking focused on immediate experiences and specific objects or events. It
is characteristic of young children ….” APA Dictionary of Psychology, https://
dictionary.apa.org/concrete-thinking (accessed Nov 22, 2021).
Cite as 316 Or App 5 (2021) 17
court apprised of youth’s level of comprehension would not
have accepted youth’s plea. Youth, therefore, was prejudiced.
In rejecting petitioner’s claims, the juvenile court
found that the record indicated that petitioner had suffered
a cognitive decline between the time he entered his plea and
the time his lawyer had his competency evaluated. That finding of a decline is not supported by the record. As noted, all
formal evaluations of youth throughout his life have found
him to be low-functioning, and his IQ score has remained
relatively static across evaluations. The only evidence potentially showing that youth was competent to enter a plea is
the evidence that the lawyers and members of the courts
interacting with him did not detect any competency issues.
But, as we have explained, the competency of a juvenile of
youth’s age to enter a plea with long-term consequences typically cannot be reasonably assessed from interactions with
youth alone. The facts of this case, in particular, highlight
the danger of relying on lawyer-client interactions alone to
assess competency. The OYA psychologist who evaluated
youth found that he “tries to appear knowledgeable” in contexts he does not understand, underscoring the need for lawyers representing him to dig deeper when assessing their
clients’ level of understanding. Some further investigation
into a youth’s capacity—such as consultation with educators
or other persons familiar with the youth about the youth’s
intelligence and level of comprehension—is needed.
Reversed and remanded with instructions to grant
youth’s motion to set aside the adjudication.
