Denial of Post-Conviction Petition

Oregon Court of Appeals Finds Trial Counsel Ineffective and Reverses Conviction and Denial of Post-Conviction Petition

Silhouette of barbed wires and watchtower of prisonThe case of Cartrette v. Nooth is an example of how perseverance on the part of a criminal defendant may eventually pay off. After Joshua Ames Cartrette was charged and convicted of second-degree assault, he filed a petition for post-conviction relief (PCR) in the trial court, claiming he was denied the effective assistance of counsel at trial. The trial court denied his petition and he appealed.

This time, Cartrette prevailed. The Oregon Court of Appeals reversed the trial court’s denial of the PCR petition and granted Cartrette relief from his conviction.

Overview of the Case

There was no question that an altercation occurred between Cartrette and his girlfriend’s former boyfriend, Johnson and that Cartrette severely injured Johnson. Cartrette claimed he acted only in self-defense, yet Johnson said Cartrette started the fight and was helped by Cartrette’s friend, Watson. Cartrette and Watson, both charged, were tried separately.

Watson presented the testimony of Mr. Smith, a former cell-mate of Johnson. Smith testified that Johnson admitted he had been the aggressor, but needed to prove Cartrette started the fight so that Johnson, as the victim of a crime, could have his medical expenses paid by the state. Watson was acquitted. At Johnson’s trial, Johnson’s attorney failed to call Smith as a witness. Johnson was convicted and sentenced to 70 months in prison.

Cartrette met the Standard for Prevailing on an Ineffective Assistance of Counsel Claim

The Sixth Amendment to the U.S. Constitution and Article I, section 11, of the Oregon Constitution give criminal defendants the right to effective assistance of counsel. Counsel is not expected to be perfect, but, here, the defendant met his burden by proving his counsel did not provide him the representation to which he was constitutionally entitled.

  1. His counsel failed to exercise reasonable professional skill and judgment based on circumstances counsel knew at the time she made the decision not to call Smith as a witness. She knew the case turned on whether or not Cartrette acted in self-defense, that Johnson would testify that Cartrette was the aggressor, that Smith was a competent witness at Watkins trial and that she had subpoenaed Smith who was available to testify. Smith’s testimony would have been helpful at worst and crucial at best. The failure to present Smith’s testimony was error.
  2. The failure to call Smith as a witness created more than a possibility, “but less than a probability” that Cartrette would have been acquitted. Without Smith, the jury only heard from Johnson that he was not the aggressor. Smith would have corroborated Cartrette’s version that he had acted in self-defense. This could have resulted in an acquittal. Therefore, Cartrette’s attorney’s failure to call Smith was prejudicial. The appellate court reversed the denial of Cartrette’s PCR petition.

Take-Away from this Case

When there is an issue of ineffective assistance of counsel, a competent post-conviction and appeals attorney may eventually prevail. Even if the case seems lost at the trial level, defendants may still have hope.

Contact Lemarr E. Carver, a Post-Conviction Relief Attorney in Beaverton and Salem

If you have a similar issue, or any concern about your trial or any other type of inmate litigation, you will find the experience and track record of Lemarr E. Carver helpful. Contact him at (503) 352-5804 (Beaverton) or (503) 585-0515 (Salem) for a free consultation. He assists all of those throughout the state of Oregon.


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