No. 170 February 26, 2025 299
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
MICHAEL RAY KOENIG,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
21CV05699; A181998
Claudia M. Burton, Senior Judge.
Submitted January 28, 2025.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
PER CURIAM
Affirmed.
300 Koenig v. Miller
PER CURIAM
Petitioner appeals from a judgment denying his
petition for post-conviction relief. After a bench trial on two
cases that were consolidated for trial, petitioner was convicted of three counts of rape in the first degree, two counts
of assault in the fourth degree, and one count of sodomy in
the first degree.
In particular, and at issue in this appeal, a stipulated amended indictment in one of the cases alleged the
same acts as in the original indictment, but within a later
date range. Petitioner sought post-conviction relief, contending that trial counsel was “ineffective in stipulating to the
amended indictment because the amendment changed the
indictment from acts that were barred by the statute of limitations to acts within the statute of limitations.” Petitioner
argues that competent counsel would have objected to the
amended indictment, and that he was prejudiced by counsel’s failure to do so.
The post-conviction court denied relief, stating that
petitioner “cannot establish that competent counsel would
have objected to the amended indictment or that he was
prejudiced by the amended indictment” as it “was clear that
the court’s verdict was based on testimony [about] events
occurring within the statute of limitations” and further that
“had trial counsel objected to the amended indictment the
most likely outcome is that the prosecutor would have gone
back to the grand jury and obtained a new indictment, and
the court still would have convicted petitioner.”
To establish inadequate or ineffective assistance
of counsel, a petitioner must prove both a performance element and a prejudice element, by a preponderance of the
evidence. See Smith v. Kelly,
(2023) (stating standards
for inadequate and ineffective assistance of counsel under
the state and federal constitutions). Our review is for legal
error, accepting the post-conviction court’s factual findings
if there is evidence to support them. Montez v. Czerniak,
(2002)).
Having reviewed the briefing, the relevant portions
of the record, and the applicable law, we affirm. We note
that, even if competent counsel would have objected, we conclude that petitioner did not establish prejudice.
Affirmed.
