No. 219 March 12, 2025 803
This is a nonprecedential memorandum opinion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
WADE ANTHONY COCHELL,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
19CV15493; A180677
J. Burdette Pratt, Senior Judge.
Submitted February 3, 2025.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
HELLMAN, J.
Affirmed.
804 Cochell v. Reyes
HELLMAN, J.
Petitioner appeals from a judgment that denied his
petition for post-conviction relief, which raised claims of
constitutionally inadequate and ineffective counsel. For the
reasons below, we affirm.
Petitioner was convicted of multiple counts of first-degree sodomy, ORS 163.405, and first-degree sexual abuse,
ORS 163.427, for acts committed against his girlfriend’s
then four-year-old son.1 Thereafter, petitioner pursued post-conviction relief, claiming that he received constitutionally
inadequate and ineffective representation under the state
and federal constitutions. As relevant to this appeal, petitioner challenged trial counsel’s failures to call an expert
in child sexual abuse interview techniques and to obtain
relevant records concerning the victim and his family. The
post-conviction court denied relief on all claims. This appeal
followed.
We review the post-conviction court’s decision for
legal error. Green v. Franke, 357 Or 301, 312,
350 P3d 188
(2015). “A post-conviction court’s findings of historical fact
are binding on this court if there is evidence in the record to
support them.”
Id.
A petitioner claiming inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution
has the burden “to show, by a preponderance of the evidence,
facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner
suffered prejudice as a result.” Trujillo v. Maass, 312 Or 431,
435,
822 P2d 703 (1991) (“Only those acts or omissions by
counsel which have a tendency to affect the result of the
prosecution can be regarded as of constitutional magnitude.”
(Internal quotation marks and brackets omitted.)). Under
the federal standard, a petitioner is required to “show that
counsel’s representation fell below an objective standard of
reasonableness” and that, as a result, petitioner was prejudiced. Strickland v. Washington,
466 US 668, 687-88,
104
S Ct 2052,
80 L Ed 2d 674 (1984). As the Oregon Supreme
1
The record indicates that the victim was 10 or 11 years old when he reported
the abuse.
Nonprecedential Memo Op: 338 Or App 803 (2025) 805
Court has recognized, those standards are “functionally
equivalent.” Montez v. Czerniak,
355 Or 1, 6-7,
322 P3d 487,
adh’d to as modified on recons,
355 Or 598, (2014).
Expert witness. In petitioner’s first assignment of
error, he challenges the post-conviction court’s denial of
his claim that counsel provided inadequate and ineffective
assistance “in failing to investigate and offer expert testimony regarding the suggestibility of child witnesses and the
protocols for interviewing children.”
The Supreme Court has explained that counsel’s
“tactical decisions” with respect to investigation and trial
strategy “must be grounded on a reasonable investigation.”
Gorham v. Thompson, 332 Or 560, 567,
34 P3d 161 (2001); see
also Wiggins v. Smith,
539 US 510, 521,
123 S Ct 2527,
156 L
Ed 2d 471 (2003) (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” (Internal quotation
marks omitted.)).
We conclude that the post-conviction court did not
err in denying petitioner’s claim. Although trial counsel’s
strategy did not include expert testimony, the record supports the post-conviction court’s determination that counsel’s strategy was reasonable in this case. See Gorham, 332
Or at 567 (“It is well established that a reviewing court will
not second-guess a lawyer’s tactical decisions in the name
of the constitution unless those decisions reflect an absence
or suspension of professional skill and judgment. However,
tactical decisions must be grounded on a reasonable investigation.” (Citation omitted.)); see also Strickland,
466 US at
690-91 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”).
Here, trial counsel explained that, “through [his] 45
years of experience,” he had learned that “a simple defense
is better than an elaborate one.” After reviewing “the police
reports, the CARES report, and the forensic interview of
the victim,” counsel determined that “it was not necessary
to have an expert in child development and interview technique” and believed a “simple, clear, and relatable” defense
806 Cochell v. Reyes
was appropriate.2 As the post-conviction court correctly recognized, “[t]he issue is not whether trial counsel could have
pursued a different defense, but it is whether he pursued
a reasonable defense strategy.” Thus, the post-conviction
court did not err in concluding that petitioner “did not prove
that his trial attorney failed to exercise reasonable professional skill and judgment.” See Trujillo, 312 Or at 435 (stating a petitioner’s burden under the Oregon Constitution);
Strickland,
466 US at 687 (stating a petitioner’s burden
under the United States Constitution).
Records. In his second assignment of error, petitioner argues that counsel was inadequate and ineffective
for failing to obtain “necessary records,” including the victim’s counseling and CARES NW records and the family’s
DHS records. Like petitioner’s first assignment of error, his
second assignment implicates counsel’s duty to investigate
and pursue a reasonable trial strategy. See Gorham, 332 Or
at 567; Wiggins,
539 US at 521.
We conclude that the post-conviction court did not
err in denying petitioner’s claim. The post-conviction court
found that counsel “did obtain some DHS records as part
of discovery” and that counsel “explained his reason for
not obtaining the counseling records.” The record supports
those findings. Specifically, counsel stated that he “obtained
and reviewed the documents that [he] felt were necessary
to [petitioner’s] defense that the victim lied in order to avoid
punishment” for misconduct and that he obtained “some
DHS records.” Counsel explained that he did not obtain certain DHS records or the victim’s juvenile records because
they were not relevant to his defense theory.3 Counsel further
explained that he “may not have wanted to get the [victim’s
counseling] records” because he “had an experience in the
past where getting the counseling records very much damaged my defense.”4 After reviewing the available evidence,
2
The post-conviction court found counsel’s testimony “to be credible” and
petitioner’s expert’s testimony “to be credible but not persuasive.”
3
The post-conviction court also found that petitioner “did not prove which
DHS records were obtained and which were not, nor what was in the records not
obtained.” Petitioner does not challenge that finding on appeal.
4
The post-conviction court found that the victim’s juvenile records contained information that was “harmful to Petitioner’s defense.” Petitioner does not
Nonprecedential Memo Op: 338 Or App 803 (2025) 807
including “a great number of inconsistencies that [he] could
use as impeachment and evidence against the victim,” counsel believed he had a defense theory that was “supported
by the evidence.” Counsel also used those inconsistencies at
trial to support his chosen defense. Thus, on the facts of this
case, we conclude that the post-conviction court did not err in
determining that counsel made a reasonable strategic decision about “obtain[ing] necessary records … to adequately
prepare and litigate petitioner’s case” and that petitioner
did not demonstrate that counsel’s representation lacked
“reasonable professional skill and judgment,” Trujillo,
312
Or at 435, or “fell below an objective standard of reasonableness.” Strickland,
466 US at 688. The post-conviction court
did not err in denying relief on petitioner’s claim.
Affirmed.
challenge that finding on appeal.
