Pereida-Alba v. Coursey

654	                       January 15, 2015	                         No. 2

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                 FELIPE PEREIDA-ALBA,
                   Respondent on Review,
                              v.
                      Rick COURSEY,
                      Superintendent,
           Eastern Oregon Correctional Institution,
                    Petitioner on Review.
          (CC CV090464; CA A146174; SC S060846)

   	En Banc
   	On review from the Court of Appeals.*
   	Argued and submitted September 16, 2013.
   	Erin C. Lagesen, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
   	Rankin Johnson IV, Portland, argued the cause and filed
the brief for respondent on review.
   	KISTLER, J.
   	The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
   	Walters, J., concurred in the judgment and filed an
opinion.
   	Baldwin, J., dissented and filed an opinion.




______________
	   *  Appeal from Umatilla County Circuit Court, James R. Hargreaves, Judge.

252 Or App 66

, 

284 P3d 1280

 (2012).
Cite as 

356 Or 654

 (2015)	655

    Petitioner moved for post-conviction relief after his attorney failed to request
a lesser-included instruction on third-degree robbery in his first-degree robbery
trial. At the post-conviction hearing, petitioner offered into evidence only the
transcript, entries from the trial court record, and the parties’ briefs on direct
appeal. The state argued that petitioner had failed to meet his burden of prov-
ing inadequate assistance because, from the transcripts, one could conclude that
petitioner’s attorney reasonably was taking an all-or-nothing strategy, forcing
the jury to choose between conviction on the first-degree robbery charge and
acquittal. The post-conviction court agreed with petitioner that no reasonable
attorney would take an all-or-nothing strategy on the facts of his case. The
Court of Appeals affirmed but on different grounds, concluding that, because
there was no evident downside and significant potential upside to requesting a
lesser-included instruction, the post-conviction court could have found that peti-
tioner’s counsel failed to consider asking for a lesser-included instruction. Held:
(1) where the proof of the greater charge is doubtful and evidence of a serious
lesser-included offense is slight, a defense attorney may reasonably decide not to
request instructions on the lesser-included offense; (2) in some circumstances,
the failure to consider a trial strategy may constitute inadequate assistance; (3)
the case must be remanded so that the post-conviction court can make an explicit
finding on whether petitioner’s attorney made a conscious decision to take an all-
or-nothing strategy.
656	                                          Pereida-Alba v. Coursey

	          KISTLER, J.
	        Petitioner was convicted of first-degree robbery.
After pursuing a direct appeal, he filed a petition for post-
conviction relief, alleging that his trial counsel’s perfor-
mance had fallen below the minimum level of representa-
tion that the state and federal constitutions require. Among
other things, petitioner claimed that his trial counsel was
constitutionally inadequate for failing to ask for an instruc-
tion on the lesser-included offense of third-degree robbery.
Essentially, he argued that his trial counsel either did not
decide or reasonably could not have decided to forego giving
the jury the option of convicting him of the lesser-included
offense of third-degree robbery. The post-conviction court
ruled that no reasonable counsel would have failed to ask for
an instruction on that lesser-included offense and entered
judgment in petitioner’s favor.
	        The Court of Appeals affirmed the post-conviction
court’s judgment but on a different ground. Pereida-Alba
v. Coursey, 

252 Or App 66

, 

284 P3d 1280

 (2012). It rea-
soned that the post-conviction court could have found that
petitioner’s counsel inadvertently failed to ask for a lesser-
included instruction. 

Id. at 71

. The Court of Appeals con-
cluded that the failure to make a conscious decision regard-
ing that issue was sufficient, without more, to establish
constitutionally inadequate assistance. 

Id.

 We allowed the
state’s petition for review to consider this recurring issue.
We now reverse the Court of Appeals decision and the post-
conviction court’s judgment and remand this case to the cir-
cuit court for further proceedings.1
	        The evidence at petitioner’s post-conviction trial
consisted of the transcript of his criminal trial, some entries
from the trial court record, and the briefs that the parties
had filed on direct appeal. We take the following facts from
the transcript of the criminal trial. One day, petitioner went
into a Shop’N Kart in Woodburn, Oregon. He was wearing
a backpack with a “bright yellow Tweety Bird on it,” and

	1
      The defendant in this post-conviction proceeding is the superintendent
of the Eastern Oregon Correctional Institution. We refer to the superintendent
as “the state” to avoid confusion with the defendant and defense counsel in the
underlying criminal trial.
Cite as 

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 (2015)	657

the store’s security guard kept an eye on petitioner because
he was concerned that petitioner would take food from the
store and put it into his backpack. The guard saw petitioner
take two packages of Twinkies and a carton of flavored
milk, crouch behind one of the shelves, put the flavored milk
and Twinkies into his backpack, and leave the store without
paying. The guard pursued petitioner, identified himself as a
security guard, and showed petitioner a badge. Because the
guard did not speak Spanish and petitioner did not speak
English, a store employee went with the security guard and
translated.
	         When the guard confronted petitioner, petitioner
initially “started backing up with his hands up.” Then, he
“turned around and took off running.” The guard caught up
with petitioner, “took him to the ground[,] and put him in a
headlock and a wristlock to put him in a submission [hold].”
The guard told petitioner “don’t run, stop resisting” and
asked petitioner, through the store employee, if he were going
to cooperate. When petitioner said that he would, the guard
let petitioner up but kept him “in a wristlock and headlock
because [the guard] did not want [petitioner] running from
[him].” When asked whether petitioner had “attempt[ed] to
pull away” as he walked petitioner back into the store, the
guard answered, “He was still struggling with me, but once
we got into the building he stopped the struggling.”
	        Once in the building, the guard took petitioner
upstairs to the office where petitioner sat in a chair hold-
ing his backpack. What happened next was disputed. The
security guard testified that he tried to get hold of the back-
pack but that petitioner initially hugged the backpack to
his chest. The guard testified that, when he attempted to
get hold of the backpack a second time, petitioner “ripped”
the backpack open, pulled out a gun, and pointed it directly
at the guard for several seconds. According to the guard,
petitioner was “holding [the gun] with his right hand, his
hands [were] around the stock of the gun and his finger’s on
the trigger, and it’s pointed right at me.” At that point, the
guard told petitioner to leave, which he did.
	      The store employee, who spoke Spanish and thus
understood what petitioner had said, offered a different
658	                                  Pereida-Alba v. Coursey

perspective. He testified that, when the guard was trying to
grab petitioner’s backpack, petitioner said in Spanish, “[D]o
you really want to see what I have, do you really want to
see,” as if petitioner were asking a question. As the security
guard got closer, petitioner pulled the handgun out, pointed
it for a second at the guard, and then pointed it at the ceil-
ing. Petitioner “looked towards [the store employee] and he
said he didn’t want to do anything, pretty much saying he
didn’t want to harm anybody.”

	       Petitioner’s testimony essentially tracked the store
employee’s. He testified that, when the guard asked to see
what was in his backpack, “he didn’t want to show it to them
because he knew there was a weapon in there.” However, the
guard “kept insisting that [petitioner] should take things
out” of the backpack. So, he did. Petitioner testified that
he took the gun out but did not point it at the guard. The
guard, however, “got scared and [he] told [him] to leave.”
When asked why he left the store, petitioner replied, “They
told me to leave.”

	        Several days later, two officers saw petitioner wear-
ing his backpack. They arrested him, and the state charged
him with first-degree robbery. The indictment alleged:
   “[Petitioner] * * * did unlawfully and knowingly while in
   the course of committing theft, with the intent of prevent-
   ing and overcoming resistance to [his] taking of property
   and retention of the property after the taking, use and
   threaten the immediate use of physical force upon [the
   security guard] and use a dangerous weapon. The State
   further alleges [that petitioner] used or threatened the
   immediate use of a firearm.”

At the trial on that charge, the parties’ closing arguments
focused on whether petitioner had used or threatened the use
of a firearm with the intent of retaining the Twinkies and
flavored milk. Relying on the security guard’s testimony, the
state argued that, when petitioner took the gun out of the
backpack and pointed it at the guard, he had threatened
the use of a firearm with the intent of retaining the stolen
property. That was the point, the state argued, at which the
robbery occurred.
Cite as 

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 (2015)	659

	        Defense counsel responded that there were two
versions of the events: the security guard’s and petitioner’s.
She acknowledged that petitioner had taken a gun out of
his backpack but explained that, as petitioner testified, he
had done so because the guard had insisted that he empty
his backpack. She explained that the store employee’s testi-
mony corroborated petitioner’s version of the events, and she
reminded the jury that the store employee was the only per-
son other than petitioner who understood what petitioner
had said that day. Beyond that, she argued that, as a prac-
tical matter, no one would use deadly force to retain two
packages of Twinkies and a carton of milk. In concluding,
she acknowledged that petitioner had committed theft, but
she argued that “we’re not talking about a Theft II here;
we’re talking about a [R]obbery I, and that is a huge dif-
ference.” She told the jurors that, when they considered the
store employee’s testimony, “you will find that in fact [peti-
tioner] is not guilty of robbery in the first degree.”

	          The trial court instructed the jury that:
    “Oregon law provides that a person commits the crime of
    robbery in the first degree if, in the course of committing
    or attempting to commit theft, the person uses or threat-
    ens the immediate use of physical force upon another per-
    son with the intent of preventing or overcoming resistance
    to his taking of the property or retention of the property
    immediately after the taking, and he uses or attempts to
    use a dangerous weapon.”

Because first-degree robbery consists of third-degree robbery
plus the use or attempted use of a dangerous weapon, ORS
164.415(1)(b),2 the trial court’s instructions on first-degree
robbery necessarily included the elements of third-degree
robbery. See ORS 164.395(1)(b).3 Third-degree robbery, in

	2
       ORS 164.415(1)(b) provides that “[a] person commits the crime of robbery
in the first degree if the person violates ORS 164.395 [defining third-degree rob-
bery] and the person * * * uses or attempts to use a dangerous weapon.”
	3
       ORS 164.395 provides that a person commits third-degree robbery:
    “if in the course of committing or attempting to commit theft * * * the person
    uses or threatens the immediate use of physical force upon another person
    with the intent of: [p]reventing or overcoming resistance to the taking of
    property or to retention thereof immediately after the taking.”
660	                                  Pereida-Alba v. Coursey

turn, includes the crime of theft or attempted theft, see 

id.,

and the trial court instructed the jury on the elements of
theft in the course of defining what the state had to prove to
establish first-degree robbery.

	        Defense counsel did not ask that the jury be
instructed separately on either third-degree robbery or theft
as lesser-included offenses, which would have permitted the
jury to convict him of one or both those offenses. Rather, the
instructions left it to the jury to decide whether petitioner
was guilty of first-degree robbery or nothing. After consid-
ering the evidence, the jury found petitioner guilty of first-
degree robbery.

	        As noted, petitioner filed a petition for post-
conviction relief, alleging that his trial counsel had provided
constitutionally inadequate assistance in failing to request
an instruction on the lesser-included offense of third-degree
robbery. (Petitioner did not allege that his trial counsel had
been inadequate in failing to ask for an instruction on the
lesser-included offense of theft.) The state countered that,
given the store employee’s favorable testimony, petitioner’s
trial counsel reasonably could have made a tactical choice to
limit the jury’s options to convicting petitioner of first-degree
robbery or acquitting him. In the state’s view, the evidence
that petitioner had used a gun to retain the Twinkies and
flavored milk was weak, which made it reasonable to put
the jury to the choice of convicting petitioner of first-degree
robbery or nothing.

	        The post-conviction court ruled that, when the state
claims that a petitioner’s trial counsel made a reasonable
tactical choice, “the petitioner has the burden of proving that
no reasonably qualified defense attorney would have made
the choice complained about in the post conviction proceed-
ing.” Applying that standard, the court held that, “[s]hort
of evidence that the petitioner in this case instructed the
trial attorney to take an ‘all or nothing’ approach as she did
(and there is no such evidence) I simply cannot imagine why
defense counsel would not have at least asked for at least
a Robbery III [instruction].” Having concluded that no rea-
sonable defense attorney would have failed to ask for that
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 (2015)	661

instruction, the court granted petitioner post-conviction
relief.4
	         The Court of Appeals affirmed but on a different
ground. It observed that the mandatory minimum sentence
for first-degree robbery is 90 months while the guidelines
sentence for third-degree robbery ranges from probation to
16 months. Pereida-Alba, 

252 Or App at 71

. Explaining that
the evidence permitted petitioner to argue that he had com-
mitted third-degree robbery but not first-degree robbery,5
the court reasoned:
    “The upshot is that there was no evident downside to peti-
    tioner from requesting an instruction on third-degree rob-
    bery and a significant potential benefit to him from doing
    so.”

Id.

 The Court of Appeals concluded that, given its assess-
ment of the potential risks and benefits, “the post-conviction
court reasonably could [and implicitly did] infer that the
defense attorney’s failure to request an instruction on third-
degree robbery was attributable to the attorney’s failure to
consider whether to make such a request.” 

Id.

 The court also
concluded, without explanation, that the failure to consider
whether to ask for an instruction on third-degree robbery
established inadequate assistance. 

Id.

 Finally, the Court of
Appeals concluded that trial counsel’s omission prejudiced
petitioner because “the jury did not have a complete state-
ment of the law.” 

Id. at 72

.
	       Under Oregon law, a petitioner claiming inade-
quate assistance of counsel must prove that his or her trial
counsel failed to exercise reasonable professional skill and
judgment and that, because of that failure, the petitioner
	4
        The petition for post-conviction relief contained multiple claims for relief,
one of which alleged several specifications of inadequate assistance of counsel.
The post-conviction court rejected petitioner’s claims and all his specifications
of inadequate assistance except for the specification discussed above. Based on
its ruling on that single specification, the court granted the petition for post-
conviction relief.
	5
       The Court of Appeals reasoned that the security guard’s statement that
petitioner had struggled as the guard took him back into the store was both suf-
ficient to permit the jury to convict him of third-degree robbery and sufficiently
separate from any later use of the gun to permit defense counsel to argue that
the jury could find petitioner guilty of third-degree robbery but not guilty of first-
degree robbery.
662	                                 Pereida-Alba v. Coursey

suffered prejudice. Gable v. State of Oregon, 

353 Or 750, 758

,

305 P3d 85

, cert den, 

134 S Ct 651

 (2013). Similarly, under
federal law, a petitioner must establish that “counsel’s per-
formance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 

466 US 668, 687

, 

104 S Ct 2052

, 

80 L Ed 2d 674

 (1984). In this case,
petitioner contends that his counsel’s performance was defi-
cient because she either did not make a conscious choice to
forego asking for an instruction on third-degree robbery or,
if she made that choice, no reasonable counsel would have
done so.
	        This court has recognized that lawyers often face
competing choices in deciding how to investigate and try
their cases. See, e.g., Montez v. Czerniak, 

355 Or 1, 7

, 

322 P3d 487

(2014); Stevens v. State of Oregon, 

322 Or 101, 109

, 

902 P2d 1137

 (1995). We have been careful not to second-guess
a lawyer’s tactical decisions with the benefit of hindsight;
rather, we have asked whether those decisions reflected, at
the time they were made, a reasonable exercise of profes-
sional skill and judgment. Krummacher v. Gierloff, 

290 Or 867, 875

, 

627 P2d 458

 (1981); Stevens, 

322 Or at 108

.
	        In a post-conviction proceeding, the petitioner has
the burden of proving both elements of an inadequate assis-
tance claim: (1) the failure to exercise reasonable profes-
sional skill and (2) prejudice. ORS 138.620(2); Trujillo v.
Maass, 

312 Or 431, 435

, 

822 P2d 703

 (1991). When, as in
this case, the state argues that the petitioner’s trial coun-
sel made a reasonable tactical choice, that argument does
not shift the burden of production and proof; rather, as peti-
tioner acknowledges, the burden of production and proof
remains with him.
	       With those principles in mind, we turn to the argu-
ments that petitioner raises on review. Petitioner’s initial
argument tracks the Court of Appeals’ reasoning. He con-
tends that, because no reasonable counsel would have failed
to ask for an instruction on the lesser-included charge of
third-degree robbery, the post-conviction court could have
found that his counsel simply failed to consider that option,
a failure that petitioner asserts automatically establishes
inadequate assistance. Petitioner’s second argument tracks
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the post-conviction court’s reasoning. He argues that, even
if his counsel made a conscious decision to forego asking
for an instruction on third-degree robbery, the disparity
between the sentences for first- and third-degree robbery
was so great that no reasonable counsel would have made
that choice.
	         We begin with petitioner’s second argument. If the
post-conviction court were correct that no reasonable coun-
sel would have chosen to forego asking for an instruction
on third-degree robbery, then it is immaterial whether peti-
tioner’s counsel consciously made that choice. Even if she did,
her choice was not a reasonable one, or so the post-conviction
court concluded. In resolving that issue, the historical cir-
cumstances that underlay counsel’s choice present factual
issues for the trial court, and we will uphold its factual
findings if there is evidence in the record to support them.
Krummacher, 

290 Or at 869

. The question whether, given
those circumstances, counsel reasonably could have chosen
to forego asking for an instruction on third-degree robbery
presents a legal issue for the appellate courts. See 

id. at 869, 881

 (independently determining whether counsel’s tactical
choice was reasonable); accord Stevens, 

322 Or at 109-10

(reversing the post-conviction court’s judgment because this
court independently determined that trial counsel’s investi-
gation had not been reasonable).
	       In this case, petitioner argues that no reasonable
counsel would have chosen to forego asking for a instruction
on third-degree robbery because:
   “there was a significant risk [in this case] that the jury
   would have been uncomfortable acquitting petitioner out-
   right and would have been inclined to convict him of some-
   thing. There was also a significant risk that a conviction
   [for first-degree robbery] would result in a 90-month prison
   term, while the presumptive term of the lesser offense
   [of third-degree robbery] was probation. Under those cir-
   cumstances, the only reasonable option was to request an
   instruction on third-degree robbery.”
The state responds that petitioner’s trial counsel reasonably
could have chosen to take an “all or nothing” strategy. The
state observes that asking for an instruction on third-degree
664	                                             Pereida-Alba v. Coursey

robbery would have required defense counsel to identify an
evidentiary basis for convicting petitioner that the prosecu-
tor had not advanced.6 The state argues additionally that,
because the evidence of first-degree robbery was weak,
defense counsel reasonably could have concluded that the
jury would have acquitted petitioner of first-degree robbery.

	        As we understand petitioner’s argument, he iden-
tifies two related but separate reasons why it would have
been unreasonable for his counsel to forego asking for an
instruction on third-degree robbery. First, the absence of
an instruction on a lesser-included offense can enhance
the likelihood that the jury will convict a defendant of the
greater offense. Second, even if the absence of an instruction
on a lesser-included offense does not have that effect, peti-
tioner’s counsel still should have given the jury a “fall-back”
option of convicting defendant of a lesser offense. We begin
with the first reason that petitioner identifies.

	        The courts have recognized, in different contexts,
that the absence of an instruction on a lesser-included
offense can affect the jury’s verdict. See Beck v. Alabama,

447 US 625

, 

100 S Ct 2382

, 

65 L Ed 2d 392

 (1980); State
v. Naylor, 

291 Or 191

, 198-99 and n 6, 

629 P2d 1308

 (1981)
(citing and paraphrasing Beck’s reasoning).7 As the Court
explained in Beck:
    “[W]hen the evidence unquestionably establishes that the
    defendant is guilty of a serious, violent offense—but leaves
    some doubt with respect to an element that would justify
	6
       In petitioner’s criminal trial, the prosecutor had neither alleged nor argued
that, in struggling with the guard as the guard walked petitioner back to the
store, petitioner committed the crime of robbery. In the prosecutor’s view, the
robbery occurred when, according to the guard, petitioner withdrew the gun from
his backpack and pointed it at the guard.
	7
       The question in Naylor was whether the erroneous denial of a requested
lesser-included instruction was harmless. See 

291 Or at 198-99

. The question
in Beck was whether a statute that prohibited instructing a jury in a capital
murder case on a lesser-included charge of murder violated due process. See 

447 US at 637-38

. In this case, the question is whether petitioner’s trial counsel rea-
sonably could conclude that the benefits of not instructing the jury on the lesser-
included charge of third-degree robbery outweighed the risks of not doing so.
Beck and Naylor bear on the answer to that question in that they identify the
circumstances in which the absence of a lesser-included instruction can enhance
the risk of an unwarranted conviction on the greater offense.
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    conviction of a [greater] offense—the failure to give the
    jury the ‘third option’ of convicting of [the] lesser included
    offense would seem inevitably to enhance the risk of an
    unwarranted conviction [on the greater offense].”

447 US at 637

. Beck recognized that the absence of an
instruction on a lesser-included offense can impermissibly
enhance the risk of an unwarranted conviction when two
factors are present. First, the element that elevates the
lesser-included offense to the greater one must be doubtful.
Second, and more importantly, there must be substantial
evidence of a serious lesser offense. In those circumstances,
the absence of an instruction on the lesser offense puts the
jury to the choice of either convicting the defendant of a
doubtful greater offense or acquitting the defendant alto-
gether, despite the defendant’s apparent guilt of a serious
lesser-included offense.8
	        Applying those factors to this case, we note that one
element distinguished first-degree robbery, as charged in
this case, from third-degree robbery: the “use or attempted
use of a dangerous weapon” with the intent of retaining the
stolen property. If the jury believed that petitioner withdrew
the gun from his backpack to retain the stolen property,
then the jury should have found him guilty of first-degree
robbery. If, however, the jury believed that petitioner with-
drew the gun because the security guard ordered him to
disclose the contents of his backpack, then the jury should
have acquitted him of first-degree robbery. And because the
prosecutor had not contended that a robbery occurred before
petitioner withdrew the gun from the backpack, if the jury
did not believe that petitioner used the gun to retain the
stolen snack items, then the jury should have found that
petitioner was not guilty of robbery at all. Rather, he was
guilty, at most, of a Class C misdemeanor—third-degree
theft. See ORS 164.043 (third-degree theft consists of the
theft of property worth less than $100).

	8
       Beck illustrates the problem. In that case, the state charged the defendant
with capital murder. A state statute prohibited submitting the lesser-included
charge of murder to the jury. Because the evidence “unquestionably established”
that the defendant had murdered the victim, the absence of an instruction on the
lesser-included offense of murder put the jury to the choice of either finding the
defendant guilty of capital murder or not holding him liable for murder at all.
666	                                 Pereida-Alba v. Coursey

	        As the state argues, the evidence that petitioner
used the gun with the intent to retain the stolen property
was, at best, doubtful. Indeed, petitioner concedes in his brief
on the merits that “[t]he jury was not likely to see petitioner
as an armed robber.” Not only had petitioner testified at his
criminal trial that he had not pointed the gun at the guard,
but the testimony from the store employee, who had under-
stood what petitioner had said, corroborated petitioner’s tes-
timony. Specifically, the store employee testified that peti-
tioner had asked, in Spanish, whether the security guard
really wanted to see what he had in his backpack and then
said, as he withdrew the gun and pointed it at the ceiling,
that he did not want to hurt anyone. Given that evidence,
petitioner’s trial counsel reasonably could have determined
that the evidence that petitioner had committed first-degree
robbery was doubtful.

	As Beck makes clear, however, that is only half of
the equation. The question is not solely whether evidence
that a defendant committed the greater crime was doubt-
ful; rather, the other half of the question is what was the
strength of the evidence that the defendant had committed a
serious lesser crime. As Beck explained and Naylor echoed, if
it is apparent that the defendant committed a serious lesser
crime, then failing to instruct on the lesser offense increases
the likelihood that the jury will find the defendant guilty of
the doubtful greater crime rather than acquit the defendant
altogether.

	         In this case, the evidence that petitioner commit-
ted the lesser-included crime of third-degree robbery can be
described only as slight. As noted, a person commits third-
degree robbery if, “in the course of committing or attempt-
ing to commit theft * * * the person uses or threatens the
immediate use of physical force upon another person with
the intent of [p]reventing or overcoming resistance to the
* * * retention [of property] immediately after the taking.”
ORS 164.395. As discussed above, the evidence showed
that, after petitioner left the store with the Twinkies and
flavored milk, the security guard confronted petitioner, who
attempted initially to back away with his hands up and then
to flee. The guard tackled petitioner as he fled, took him to
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 (2015)	667

the ground, and put petitioner in a submission hold. When
the guard let petitioner stand back up, he held him in a
“wristlock and headlock” as he walked petitioner back into
the store.
	        The evidence that petitioner used force on the
guard (other than any use of the gun) came in the midst
of the security guard’s testimony describing how the guard
had tackled, subdued, and held petitioner in a wristlock and
headlock. When asked whether petitioner “had attempted to
pull away” from him as he walked petitioner back into the
store, the guard said, “He was still struggling with me but
once we got into the building he stopped the struggling.”9
	        In the post-conviction court, petitioner argued
(and the state did not dispute) that the guard’s reference to
petitioner “struggling” was sufficient to permit the jury to
find that petitioner had used physical force on the guard to
retain the Twinkies and thus was guilty third-degree rob-
bery.10 While it is possible, with the benefit of hindsight and
the luxury of time, to identify an evidentiary basis on which
the jury could have found petitioner guilty of third-degree
robbery, the evidence of physical force that petitioner identi-
fied at the post-conviction hearing can hardly be described
as compelling, clear, or even substantial. Slight, evanescent,
or even chimerical would be more apt. The evidence that
petitioner identified at the post-conviction hearing that he
had used force on the security guard consisted of one sen-
tence in the middle of a passage primarily describing how
the security guard had used force on petitioner (tackling

	90
        We note that the guard also testified that, when he tackled petitioner and
took him to the ground, he told petitioner “don’t run, stop resisting.” Petitioner
does not rely on that reference to resisting to argue that there was evidence
from which the jury could find that he used “physical force upon” the guard. See
ORS 164.395 (defining third-degree robbery). Additionally, petitioner previously
argued (but does not argue on review) that jury could have found that he used
physical force when he held onto his backpack as the guard attempted to wrest
it from him. In holding onto his backpack, petitioner was not using “force upon
another,” which is the relevant element of third-degree robbery. See ORS 164.395
(emphasis added).
	10
        The Court of Appeals relied on that evidence as the basis for holding that
petitioner’s counsel should have requested an instruction on the lesser-included
offense of third-degree robbery. On review, petitioner identifies an additional
basis on which the jury could have found him liable of third-degree robbery. We
discuss that basis below.
668	                                               Pereida-Alba v. Coursey

petitioner and putting him in a headlock, wristlock, etc.) to
keep petitioner from fleeing.
	        This is not a case, as in Beck, where the evidence
“unquestionably established” that petitioner was guilty of a
serious, lesser offense. Rather, this is a case in which the
evidence that defendant had committed the lesser offense
of third-degree robbery was barely apparent. The concern
articulated in Beck and echoed in Naylor that the jury would
convict petitioner of a doubtful charge of first-degree rob-
bery to avoid acquitting him of an apparent third-degree
robbery was minimal, at most.11
	        To be sure, it was undisputed that petitioner had
committed theft. However, not only has petitioner not
claimed that his counsel was constitutionally deficient for
not asking for an instruction on that lesser-included offense,
but petitioner’s theft was a relatively minor one. Petitioner
shoplifted two packages of Twinkies and a carton of flavored
milk, an offense that could have been charged only as third-
degree theft, a Class C misdemeanor. See ORS 164.043
(defining theft of property worth less than $100 as third-
degree theft, which is a Class C misdemeanor).
	        In these circumstances, petitioner’s trial counsel
reasonably could have concluded that the absence of an
instruction on third-degree robbery would not have imper-
missibly skewed the jury’s verdict towards a conviction for
first-degree robbery, as the absence of an instruction on the
lesser-included charge of murder in Beck skewed the jury’s
verdict in that case towards a conviction for capital murder.
She also reasonably could have concluded that, faced with
the choice of convicting petitioner of the doubtful crime of
first-degree robbery or acquitting him altogether, the jury
would choose the latter course. The jury, of course, convicted
petitioner of first-degree robbery. However, our cases teach
	11
        In his brief on the merits, petitioner argues that the jury also could have
found him guilty of third-degree robbery based on his use of the gun. Logically,
petitioner’s argument is problematic. If, as the prosecutor argued, petitioner
withdrew the gun and pointed it at the guard to retain the stolen Twinkies, then
petitioner was guilty of first-degree robbery. If, however, as petitioner argues in
his brief on the merits, he withdrew the gun solely because the guard directed
him to do so, then his display of the gun did not constitute the use of physical force
with the intent to retain the stolen snack items, which could elevate his theft of
those items to third-degree robbery.
Cite as 

356 Or 654

 (2015)	669

that we must not evaluate the reasonableness of counsel’s
choice with the benefit of hindsight. Rather, the question is
whether the choice was a reasonable one at the time it was
made. Montez, 

355 Or at 7

.
	         As noted, petitioner appears to advance a related
but separate argument. Petitioner appears to argue that,
even if the absence of an instruction on third-degree rob-
bery would not have enhanced the risk of an unwarranted
conviction on the first-degree robbery charge, as in Beck, his
trial counsel still should have asked for an instruction on
third-degree robbery simply to give the jury another, less
onerous option. To the extent that is petitioner’s argument,
it fails to take account of ORS 136.460.
	        If the trial court had instructed the jury on
the lesser-included charge of third-degree robbery, then
the state would have been entitled to an acquittal-first
instruction—namely, it would have been entitled to an
instruction that the jury had to decide the first-degree rob-
bery charge before it could decide the third-degree robbery
charge. See ORS 136.460; State v. Zolotoff, 

354 Or 711, 716

,

320 P3d 561

 (2014) (explaining the effect of ORS 136.460(2)).
Under ORS 136.460(2), if the jury found petitioner guilty of
first-degree robbery, then the jury would not have reached
the third-degree robbery charge.12 Conversely, if the jury
acquitted petitioner of first-degree robbery, then instructing
the jury on third-degree robbery would have exposed peti-
tioner to liability on that charge when he otherwise would
have gone free. Put differently, if the absence of an instruc-
tion on third-degree robbery would not have enhanced the
risk that the jury would convict him of first-degree robbery,
as in Beck, then asking for an instruction on the lesser-
included offense would have unnecessarily exposed peti-
tioner to the risk of a conviction for that offense, or so his
counsel reasonably could have concluded.
	       Given ORS 136.460, petitioner’s counsel reasonably
could have concluded that, if the only point in asking for
an instruction on third-degree robbery was to give the jury
a less onerous option, doing so would not have advanced
	12
        ORS 136.460(2) provides, in part: “Only if the jury finds the defendant not
guilty of the charged offense may the jury consider a lesser included offense.”
670	                                             Pereida-Alba v. Coursey

petitioner’s interests. To be sure, as Beck and Naylor recog-
nized, the failure to instruct the jury on a lesser-included
charge can enhance the risk of an unwarranted conviction
in some cases. However, as explained above, that is not this
case. In this case, petitioner’s counsel reasonably could have
concluded that an “all or nothing” strategy was appropri-
ate. We accordingly disagree with petitioner and the post-
conviction court that, in these circumstances, no reasonable
trial court counsel would have chosen to forego an instruc-
tion on third-degree robbery.13
	        The remaining question is whether petitioner’s trial
counsel made a conscious choice to forego asking for an
instruction on third-degree robbery and, if she failed to con-
sider that option, what the legal consequences of that failure
are. As noted, the Court of Appeals reasoned that the post-
conviction court made an implicit factual finding that peti-
tioner’s counsel failed to consider asking for an instruction
on third-degree robbery, an omission that, in the Court of
Appeals’ view, automatically established inadequate assis-
tance. Petitioner urges us to adopt that reasoning. In our
view, the Court of Appeals’ reasoning is erroneous in two
respects. First, the post-conviction court did not make the
factual finding that the Court of Appeals attributed to it.
Second, as this court recently explained in Montez, the fail-
ure to consider every possible tactical choice does not auto-
matically establish inadequate assistance.
	        We begin with petitioner’s argument that the post-
conviction court found that his trial counsel failed to consider
asking for an instruction on third-degree robbery. Because
the post-conviction court did not find that fact explicitly, the
issue is whether it did so implicitly. On that issue, we presume
	13
        The dissent would hold otherwise. As we read the dissent, we differ on pri-
marily one point. In our view, the question is not whether the trial court should
have given an instruction on third-degree robbery if petitioner had requested it.
Rather, the question is whether petitioner’s counsel reasonably could have deter-
mined to forego asking for that instruction. On that issue, the reasons why the
absence of an instruction on a lesser-included offense that the Court identified in
Beck will affect a jury’s decision-making matter. Indeed, as the second paragraph
that the dissent quotes from Beck recognizes, sometimes the absence of a lesser-
included instruction “may favor the defendant.” Beck, 

447 US at 643

. For the
reasons explained above, petitioner’s counsel reasonably could have drawn that
conclusion in this case.
Cite as 

356 Or 654

 (2015)	671

that a trial court implicitly resolves factual disputes consis-
tently with its ultimate conclusion. Ball v. Gladden, 

250 Or 485, 487

, 

443 P2d 621

 (1968). That presumption has its lim-
its, however. If an implicit factual finding is not necessary
to a trial court’s ultimate conclusion or is not supported by
the record, then the presumption does not apply. See State
v. Jackson, 

296 Or 430, 440

, 

677 P2d 21

 (1984) (declining to
attribute an implicit factual finding to a trial court when
that court “never made any conclusions” regarding that fac-
tual issue) (emphasis in original); State v. Lunacolorado, 

238 Or App 691

, 

243 P3d 125

 (2010) (explaining that appellate
courts may presume that a trial court made implicit factual
findings when “there is conflicting evidence about a fact that
is a necessary predicate to the court’s conclusion”).

	        In this case, the implicit factual finding that
the Court of Appeals and petitioner attribute to the post-
conviction court was not necessary to its ruling. Rather,
the post-conviction court ruled in its letter opinion that “no
reasonably qualified defense attorney would have made the
choice complained about in the post-conviction proceeding.”
That ruling did not require the post-conviction court to
decide whether petitioner’s counsel in fact made a strategic
choice to forego asking for an instruction on third-degree
robbery. Instead, the ruling assumes that petitioner’s coun-
sel “made the choice complained about in the post-conviction
proceeding” and concludes that that choice constituted inad-
equate assistance because “no reasonably qualified defense
counsel” would have made it. We cannot assume that the
post-conviction court made the implicit factual finding that
petitioner attributes to it.

	        The question accordingly arises whether we should
remand this case to the trial court to make that finding.
In the state’s view, no remand is necessary because peti-
tioner failed to meet his burden of production. As noted
above, we agree with the state that petitioner has the bur-
den of production and persuasion on that issue. See ORS
138.620(2) (placing the burden of proof on the petitioner in
a post-conviction proceeding); State v. Probst, 

339 Or 612, 627-28

, 

124 P3d 1237

 (2005) (holding that, in considering
a collateral challenge to a final conviction, a presumption
672	                                            Pereida-Alba v. Coursey

of regularity attaches that shifts the burden of persuasion
to the person challenging the conviction); Strickland, 

466 US at 690

 (counsel is “strongly presumed to have rendered
adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment”).14 We
also agree with the state that petitioner did not submit any
direct evidence that his trial counsel inadvertently failed to
consider asking for an instruction on third-degree robbery.
Indeed, neither party submitted any testimony from peti-
tioner’s trial counsel at the post-conviction hearing.15 The
question accordingly becomes whether the circumstantial
evidence in the record is sufficient to meet petitioner’s bur-
den of production.
	        On that question, petitioner identifies one basis for
saying that the post-conviction court could have found that
his counsel failed to consider asking for a lesser-included
instruction. He argues that, because no reasonable counsel
would have failed to ask for a lesser-included instruction,
the post-conviction court could infer that his counsel simply
failed to consider that possibility. As explained above, how-
ever, the assumption on which petitioner’s argument rests is
not correct: In these circumstances, petitioner’s counsel rea-
sonably could have chosen to forego asking for an instruc-
tion on third-degree robbery.
	        We note, however, that other evidence in the record
would permit the trial court to infer that petitioner’s coun-
sel did not make a conscious choice to forego asking for an
instruction on third-degree robbery. For example, as dis-
cussed above, the testimony that petitioner struggled when
the guard took him back into the store was, in context, so
fleeting that petitioner’s counsel may not have considered
	14
        The presumption that the Court recognized in Strickland effectively shifts
the burden of production and persuasion to the petitioner to establish that his or
her counsel did not make “all significant decisions in the exercise of reasonable
professional judgment.” Cf. State v. Dahl, 

336 Or 481, 487

, 

87 P3d 650

 (2004)
(explaining that, under Oregon law, a presumption ordinarily shifts the burden
of production and persuasion). In that respect, it serves the same function as ORS
138.620(2), which explicitly places the burden of production and persuasion on
petitioner.
	15
       The parties represented at the post-conviction hearing that petitioner’s
trial counsel had declined to speak with them. Although petitioner’s trial counsel
apparently was available to testify, neither party subpoenaed her to give testi-
mony either at a deposition or at the post-conviction hearing.
Cite as 

356 Or 654

 (2015)	673

the lesser-included charge that now forms the centerpiece
of petitioner’s post-conviction claim. At least, the post-
conviction court could draw that inference, and it could fur-
ther infer that, as a result, petitioner’s counsel did not make
a tactical choice to forego asking for an instruction on third-
degree robbery.
	        There may be other evidence that petitioner can
identify on remand that would permit the same factual
inference. Our point is not to catalogue all the evidence that
would permit the post-conviction court to infer that peti-
tioner’s counsel failed to consider asking for an instruction
on third-degree robbery. Rather, our point is to recognize
that, contrary to the state’s argument, there is evidence in
the record from which the post-conviction court could find
that petitioner’s counsel failed to consider asking for a third-
degree robbery instruction. Put differently, petitioner met
his burden of production. Whether he also has met his bur-
den of persuasion on that factual issue is a question for the
post-conviction court on remand.
	        If the post-conviction court finds on remand that
petitioner has not met his burden of persuasion on that
issue and that petitioner’s counsel made a tactical choice,
see Strickland, 

466 US at 490

 (recognizing a presumption
that counsel “made all significant decisions in the exer-
cise of reasonable professional judgment”), then that choice
was a reasonable one for the reasons explained above.16
Conversely, if the post-conviction finds that petitioner has
met his burden of persuasion and that his counsel failed
to consider asking for an instruction on the lesser-included
offense of third-degree robbery, then the question whether

	16
        In Yarborough v. Gentry, 

540 US 1

, 

124 S Ct 1

, 

157 L Ed 2d 1

 (2003), the
Court reasoned:
     “When counsel focuses on some issues to the exclusion of others, there is a
     strong presumption that he did so for tactical reasons rather than through
     sheer neglect. See Strickland, 

466 US, at 690

 (counsel is ‘strongly presumed’
     to make decisions in the exercise of professional judgment). That presump-
     tion has particular force where a petitioner bases his ineffective-assistance
     claim solely on the trial record, creating a situation in which a court ‘may
     have no way of knowing whether a seemingly unusual or misguided action
     by counsel had a sound strategic motive.’ Massaro v. United States, 

538 US 500, 505

 (2003).”
Id. at 8.
674	                                Pereida-Alba v. Coursey

petitioner’s counsel provided constitutionally adequate
assistance becomes slightly more complex. As this court
recently explained, the failure to consider an issue or under-
take a particular investigation does not automatically con-
stitute inadequate assistance. See Montez, 

355 Or at 14-16, 24

 (discussing that issue in different contexts). However,
“the absence of strategic thought or direction on the part of
a defense team” can constitute inadequate assistance. See

id. at 27-28

.

	As Montez explains, whether the failure to consider
an issue constitutes inadequate assistance will turn on,
among other things, whether the strategy that defense coun-
sel did employ was reasonable, the relationship between the
evidence or theory that defense counsel failed to consider
and the strategy that counsel did pursue, and the extent
to which counsel should have been aware of the strategy
that petitioner now identifies. See 

id. at 24

 (“The fact that
petitioner would, in retrospect, have implemented his
mitigation defense in one or more different ways is not a
ground for post-conviction relief if counsel acted reasonably
in presenting the defense that they did.”); cf. Yarborough
v. Gentry, 

540 US 1, 9

, 

124 S Ct 1

, 

157 L Ed 2d 1

 (2003)
(even if defense counsel inadvertently failed to discuss cer-
tain facts and themes in closing argument, that failure was
not unreasonable in light of the themes that counsel did
pursue).

	        If, on remand, the post-conviction court finds that
petitioner has proved that his counsel failed to consider ask-
ing for an instruction on third-degree robbery, then the post-
conviction court will have to decide whether that failure con-
stituted inadequate assistance based on the reason for that
failure, considered in light of the strategy that the court
finds petitioner’s counsel did pursue. We accordingly reverse
the Court of Appeals decision and the post-conviction court’s
judgment and remand this case for further proceedings con-
sistent with this opinion.

	       The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and this case
is remanded to the circuit court for further proceedings.
Cite as 

356 Or 654

 (2015)	675

	        WALTERS, J., concurring in the judgment.
	        When a defendant is entitled to a jury instruction
on a lesser-included offense, competent trial counsel must
make a conscious choice about whether to request such an
instruction. See Lichau v. Baldwin, 

333 Or 350, 360

, 

39 P3d 851

 (2002); Stevens v. State, 

322 Or 101, 109

, 

902 P2d 1137

(1995) (tactical decisions require a conscious choice to take
or to omit action). In making such a choice, counsel must
consider the “likely costs and potential benefits of the con-
templated action.” Lichau, 

333 Or at 360

.
	        In this case, as the majority acknowledges, there is
evidence in the record that would permit the post-conviction
trial court to conclude that petitioner’s trial counsel failed to
make such a conscious choice or engage in such a cost-benefit
nalysis. However, because the court’s letter opinion does
not include an express finding to that effect, the majority
remands for a determination of those facts. I concur, but
write separately to emphasize some of the factors that the
post-conviction trial court may wish to consider in deter-
mining whether petitioner’s trial counsel made a deliber-
ate decision not to seek a jury instruction on third-degree
robbery or unreasonably failed to consciously consider that
approach.
	        The factors that I consider particularly significant
in this case are the high degree of risk posed by the failure
to request a jury instruction on third-degree robbery and
the low cost of seeking such an instruction. In this case, the
“all or nothing” approach that trial counsel took (whether
wittingly or unwittingly) meant that the only crime for
which the jury could convict defendant was first-degree
robbery—a crime that carries a mandatory minimum sen-
tence of 90 months (seven and a half years). The jury could
not convict defendant of the lesser crime of third-degree rob-
bery, which carries a sentence ranging from probation to
16 months in prison. The post-conviction trial court found
that the evidence relevant to those offenses was “in sharp
dispute.” The court explained that, “[i]f the store employees
are to be believed, there was clearly a Robbery I. If the peti-
tioner in this case is believed there was at most a Robbery
III and maybe only a Theft.” The post-conviction trial court
676	                                  Pereida-Alba v. Coursey

concluded that, “short of evidence that the petitioner in this
case instructed the trial attorney to take an ‘all or nothing’
approach as she did (and there is no such evidence), I simply
cannot imagine why defense counsel would not have at least
asked for at least a Robbery III and probably should have
asked for a simple Theft instruction as well.”
	        Although the post-conviction court did not say so
expressly, its conclusion may well reflect the view that, given
the particular facts in this case, the risk that an “all or noth-
ing” strategy posed was so high (seven and a half years of
certain confinement on conviction), and the cost of seeking
a lesser-included offense instruction was so low (adding a
possibility of short-term imprisonment without relinquish-
ing an argument for acquittal), that it is more probable than
not that petitioner’s trial counsel did not engage in the nec-
essary decision-making. On remand, the post-conviction
court will have an opportunity to consider those and other
factors identified by the majority, the dissent, and the par-
ties, and to determine whether counsel consciously made a
tactical decision not to request a jury instruction on third
degree robbery. The legislature has directed that a jury be
instructed on relevant lesser-included offenses on request.
State v. Zolotoff, 

354 Or 711, 717

, 

320 P3d 561

 (2014). A deci-
sion to forego such a request may not be unreasonable as
a matter of law, but the post-conviction court must be per-
suaded that, as a matter of fact, trial counsel consciously
chose to adopt such an “all or nothing” strategy.
	        BALDWIN, J., dissenting.
	        The issue in this case is whether petitioner’s trial
counsel failed to exercise reasonable professional skill and
judgment resulting in prejudice to petitioner when she did
not request a jury instruction on a lesser-included offense
carrying a presumptive term of probation and petitioner was
instead convicted of a greater offense carrying a mandatory
90-month prison term. Reversing the judgments of the trial
court and the Court of Appeals, the majority concludes that
trial counsel could have reasonably decided not to request
the lesser-included instruction. I respectfully dissent.
	       This is a case where petitioner admitted at trial that
he shoplifted and that he had a handgun in his backpack
Cite as 

356 Or 654

 (2015)	677

at the time he did so. Without a lesser-included instruc-
tion, the jury was faced with two options only—convict peti-
tioner of first-degree robbery or fully acquit him when he
had admitted criminal wrongdoing and might have posed
a threat to the community. Under those circumstances, and
absent any evidence that petitioner directed trial counsel to
take a high-risk “all or nothing” strategy, the veteran trial
judge below could not conceive of a scenario where a rea-
sonable attorney would not have requested a lesser-included
third-degree robbery instruction. Further, the state has not
disputed that petitioner was entitled to receive that lesser-
included instruction based on the evidence.
	        Although the Court of Appeals affirmed the trial
court’s judgment based on a conclusion that the record was
sufficient to support a finding that trial counsel did not con-
sider whether to request the lesser-included instruction, its
core analysis is persuasive and in accord with this court’s
prior case law1:
    	 “Third-degree robbery is a lesser-included offense of
    first-degree robbery. See ORS 164.415(1) (person commits
    first-degree robbery by committing third-degree robbery,
    ORS 164.395, under circumstances constituting first-
    degree robbery). Based on the record in the underlying
    criminal trial, which was included in the post-conviction
    trial record, the post-conviction court could find that it was
    highly likely that the jury would convict petitioner of first-
    degree robbery, particularly when the only charge before
    the jury was first-degree robbery.
    	 “Further, the difference in sentences for first- and
    third-degree robbery convictions is great. The sentence
    that petitioner would and did receive for conviction for first-
    degree robbery is 90 months. In contrast, the sentence for
    a conviction for third-degree robbery would range between
    probation and 16 months’ imprisonment, depending on
	1
       Although the core analysis of the Court of Appeals decision is sound, the
court’s description of its ruling is overly broad when it suggests that a defendant
is always prejudiced by trial counsel’s failure to request a lesser included instruc-
tion when the jury “[does] not a have a complete statement of the law.” Pereida-
Alba v. Coursey, 

252 Or App 66, 72

, 

284 P3d 1280

 (2012). As this court has stated,
“in many instances, a trial court’s failure to give a lesser-included instruction,
although error, may be harmless error.” State v. Zolotoff, 

354 Or 711, 719

, 

320 P3d 561

 (2014).
678	                                  Pereida-Alba v. Coursey

   petitioner’s criminal-history score. See OAR 213-004-0001;
   OAR 213-017-0007(20).
   	 “Moreover, in contrast with other cases in which the
   need to address lesser-included offenses may undercut
   the arguments and strategies that a defense attorney can
   use to defend against more serious charges, instructing
   the jury on third-degree robbery would not have compro-
   mised the defense attorney’s ability to defend against the
   first-degree robbery charge because of the distinction that
   could be made between the events that occurred outside the
   store, when petitioner was tackled and restrained by the
   security guard, and those that occurred inside the store
   when petitioner was questioned about the theft. The upshot
   is that there was no evident downside to petitioner from
   requesting an instruction on third-degree robbery and a
   significant potential benefit to him from doing so.”
Pereida-Alba v. Coursey, 

252 Or App 66, 71

, 

284 P3d 1280

(2012).
	        On review, the majority has correctly identified the
question of whether counsel reasonably could have chosen
to forgo asking for an instruction on third-degree robbery
as a legal issue. See Trujillo v. Maass, 

312 Or 431, 435

, 

822 P2d 703

 (1991). In approaching that issue, the majority cites
Beck v. Alabama, 

447 US 625

, 

100 S Ct 2382

, 

65 L Ed 2d 392

 (1980), and State v. Naylor, 

291 Or 191

, 

629 P2d 1308

(1981), for the general proposition that “courts have recog-
nized, in different contexts, that the absence of an instruc-
tion on a lesser-included offense can affect the jury’s ver-
dict.” 

356 Or at 664

. The majority also correctly relies on
Beck and Naylor for the observation that a jury’s verdict may
be affected when the evidence that a defendant committed a
greater crime is doubtful and there is evidence that a lesser-
included offense has been committed but an instruction on
the lesser-included offense has not been given. Claiming
to draw on the rationale of these cases, the majority then
creates a new test in post-conviction cases where prejudice
results from a failure of counsel to request a lesser-included
instruction; however, that test is faulty.
	      Although the majority recognizes that a failure
to request a lesser-included instruction may constitute
inadequate assistance of counsel, it now creates a novel
Cite as 

356 Or 654

 (2015)	679

requirement that a petitioner must demonstrate that the
evidence relating to the commission of the lesser-included
offense was strong in order to obtain post-conviction relief:
   “The question is not solely whether evidence that a defen-
   dant committed the greater crime was doubtful; rather, the
   other half of the question is what was the strength of the
   evidence that the defendant had committed a serious lesser
   crime. * * *
   	 “In this case, the evidence that petitioner committed
   the lesser-included crime of third-degree robbery can be
   described only as slight.”

356 Or at 666

. I do not think that the new test fashioned by
the majority is sound.
	In Beck, the United States Supreme Court held
that, under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, the death
penalty could not be imposed when a jury, based on a state
law prohibition, was not permitted to consider defendant’s
guilt of a lesser-included noncapital offense when evidence
in the record would have supported a guilty verdict on the
noncapital offense. The Court’s decision was largely based
on the enhanced risk of an unwarranted death penalty con-
viction when a jury is deprived of a “third option” of convict-
ing a defendant on a lesser-included offense:
   	 “While we have never held that a defendant is entitled
   to a lesser included offense instruction as a matter of due
   process, the nearly universal acceptance of the rule in both
   state and federal courts establishes the value to the defen-
   dant of this procedural safeguard. That safeguard would
   seem to be especially important in a case such as this. For
   when the evidence unquestionably establishes that the
   defendant is guilty of a serious, violent offense—but leaves
   some doubt with respect to an element that would justify
   conviction of a capital offense—the failure to give the jury
   the “third option” of convicting on a lesser included offense
   would seem inevitably to enhance the risk of an unwar-
   ranted conviction.
   	   “* * * * *
   “Thus, on the one hand, the unavailability of the third
   option of convicting on a lesser included offense may
680	                                              Pereida-Alba v. Coursey

    encourage the jury to convict for an impermissible reason—
    its belief that the defendant is guilty of some serious crime
    and should be punished. On the other hand, the apparently
    mandatory nature of the death penalty may encourage it
    to acquit for an equally impermissible reason—that, what-
    ever his crime, the defendant does not deserve death. In
    any particular case these two extraneous factors may favor
    the defendant or the prosecution or they may cancel each
    other out. But in every case they introduce a level of uncer-
    tainty and unreliability into the factfinding process that
    cannot be tolerated in a capital case.”

Beck, 

447 US at 637, 642-43

 (footnote omitted).
	In Beck, there was no question that the defendant
was entitled to a lesser-included instruction absent a stat-
ute prohibiting such instructions in death-penalty cases.
The Court did not find it necessary to discuss the sufficiency
of the evidence to support the lesser-included instruction.
Simply put, Beck does not stand for the proposition that a
state court in a post-conviction proceeding must or should
assess how strong the evidence is in support of a lesser-
included offense in reviewing a lawyer’s failure to request
a lesser-included instruction when there is evidence to sup-
port the lesser-included instruction.2 To the extent that Beck
does have a bearing on this case, the Court’s observations
about the significant risk of an unjustified conviction when
a jury is not provided with a “third option” tends to support
petitioner’s position in this case.
	In Naylor, this court held that a trial court’s error
in failing to give an instruction on a lesser-included offense
was not harmless. Defendant was convicted of first-degree
	2
        The majority’s interpretation of Beck is undermined by the United States
Supreme Court’s subsequent discussion of that case:
     	“Beck held that due process requires that a lesser included offense
     instruction be given when the evidence warrants such an instruction. * * *
     The federal rule is that a lesser included offense instruction should be given
     ‘if the evidence would permit a jury rationally to find [a defendant] guilty of
     the lesser offense and acquit him of the greater.’ ”
Hopper v. Evans, 

456 US 605, 611-12

, 

102 S Ct 2049

, 

72 L Ed 2d 367

 (1982) (quot-
ing Keeble v. United States, 

412 US 205, 208

, 

93 S Ct 1993

, 

36 L Ed 2d 844

 (1973));
see also Aguilar v. Dretke, 

428 F3d 526, 531

 (5th Cir 2005) (under Beck, “[a] defen-
dant is entitled to the instruction if the jury could rationally acquit the defendant
on the capital crime and convict on the non-capital crime.”).
Cite as 

356 Or 654

 (2015)	681

burglary when “[t]here was evidence which, if believed,
would have justified only a verdict and conviction of crimi-
nal trespass in the second degree.” 

291 Or at 193

. The court
did not have occasion to discuss any issue relating to the
strength or sufficiency of the evidence supporting the lesser-
included offense. Rather, the court observed that the leg-
islature, by enacting ORS 136.465, intended to provide a
jury with a “third option” when there is any evidence which
would support a verdict on a lesser offense and the jury
would otherwise be faced, as they were here, with the lim-
ited option of conviction or acquittal:
   	 “ORS 136.465 represents a legislative choice that both
   the state and the defendant shall have a right to have a
   jury, in appropriate circumstances, consider whether the
   defendant is guilty of an offense less than that with which
   the defendant has been charged. One of the apparent rea-
   sons for the grant to the jury of this power is to avoid plac-
   ing the jury in the position of making an all-or-nothing
   choice as between guilt and innocence where there is evi-
   dence which would justify a verdict of guilty of a lesser
   offense. The difficulty with presenting the jury with the all-
   or-nothing choice is that the jury may believe a defendant
   to be guilty of some apparent violation of the criminal code
   but not of the crime charged. The jury is then confronted
   with the choice of finding innocent a defendant it believes
   has been guilty of wrongdoing or finding a defendant guilty
   of a crime greater than that which the jury believes he has
   committed. That result of such a choice may in one case
   redound to the benefit of the defendant and, in another, to
   the “benefit of the prosecution,” assuming that an unjusti-
   fied conviction can ever be found to be to the benefit of the
   people. By statute the legislature provides the means for
   avoidance of this Hobson’s choice.”

Naylor, 

291 Or at 198-99

 (footnote omitted) (emphasis
added). Naylor is neither binding nor persuasive authority
for the constricted requirement the court creates today. To
the contrary, the rationale of Naylor also tends to support
petitioner’s position in this case. See also Zolotoff, 

354 Or 711, 718

, 

320 P3d 561

 (2014) (“ORS 136.460(2) does not
preclude the jury from contemplating the law as it applies
to lesser-included offenses when deliberating about the
charged offense.”).
682	                                   Pereida-Alba v. Coursey

	        As stated, both Beck and Naylor express the serious
concern that a failure to give a lesser-included instruction
may result in an unjustified conviction of a greater offense
when a lesser-included instruction is supported by suffi-
cient evidence to support a jury finding that a defendant is
guilty of the lesser offense. Neither opinion states that such
a concern is absent where the evidence that the defendant
committed the lesser offense is doubtful or not “substantial.”
As noted, in Naylor, the court stated that a jury should be
presented with a “third option” of a lesser included offense
“where there is evidence which would justify a verdict of
guilty of a lesser offense.” 

291 Or at 198

. With respect, the
test that the majority creates also misconceives the role of a
reviewing court in such cases. So long as there is sufficient
evidence to justify a guilty verdict of a lesser offense, it is for
a jury to determine whether the defendant has committed a
greater or a lesser offense.
	         This court recently stated that, in evaluating the
reasonableness of trial counsel’s representation, “we do not
inquire into counsel’s subjective state of mind; instead, we
inquire into the objective reasonableness of counsel’s perfor-
mance.” Montez v. Czerniak, 

355 Or 1, 8

, 

322 P3d 487

 (2014)
(citing Harrington v. Richter, 

562 US ___

, 

131 S Ct 770

, 

178 L Ed 2d 624

 (2011)). Based on an objective review of the
record in this case, I can conclude only that petitioner’s trial
counsel could not reasonably have decided not to request
the lesser-included instruction that petitioner was entitled
to receive under ORS 136.460. Petitioner was charged with
first-degree robbery, a Class A felony carrying a mandatory
90-month prison term. It is undisputed that the evidence
was doubtful that had petitioner used his firearm to retain
the items that he had shoplifted. Nevertheless, if petitioner
were convicted of the charged offense, the trial court was
required to impose the full 90-month prison term (as it did).
It is also undisputed that there was evidence that justified a
verdict of the lesser offense of third-degree robbery, a Class
C felony carrying a presumptive term of probation. There
is no evidence in the record tending to show that petitioner
requested that he risk the benefit of a term of probation over
a lengthy prison term or that trial counsel had a reason for
adopting such a high-risk “all or nothing” strategy that could
Cite as 

356 Or 654

 (2015)	683

result in petitioner serving a lengthy prison term. As stated
by the trial court and the Court of Appeals, there was no
evident upside to trial counsel failing to protect petitioner
from a conviction on a greater offense carrying a lengthy
mandatory prison term as compared to a conviction on a
lesser offense carrying a presumptive term of probation; the
downside was obvious. Thus, petitioner met his burden of
proving that his trial counsel failed to exercise reasonable
professional skill and judgment by not requesting the lesser-
included instruction and that the failure resulted in preju-
dice to petitioner. Trujillo, 

312 Or at 435

.
	         Further, this court has long observed that
    “[e]rrors which result from a failure to use the professional
    skill and judgment for which the lawyer is employed can-
    not be characterized as tactical choices. In other words, if
    counsel exercises reasonable professional skill and judg-
    ment, a reviewing court will not second-guess the lawyer
    in the name of the constitution, but neither will the court
    ignore decisions made in the conduct of the defense which
    reflect an absence or suspension of professional skill and
    judgment.”
Krummacher v. Gierloff, 

290 Or 867, 875-76

, 

627 P2d 458

(1981). As stated, petitioner has demonstrated that his
trial counsel failed to exercise the reasonable professional
skill and judgment for which she was employed; that fail-
ure cannot properly be characterized as a tactical choice.
See also Stevens v. State of Oregon, 

322 Or 101, 109

, 

902 P2d 1137

 (1995) (“[T]he fact that a lawyer has made a
‘tactical decision’ does not mean that the lawyer’s choice
meets the constitutional standard for adequate assistance
of counsel.”).
	        Finally, the majority has failed to give adequate
weight to the trial court’s considered assessment of the rea-
sonableness of trial counsel’s representation in this case.
Instead, the majority has substituted its own judgment for
that of the trial court without a persuasive explanation of
why it has done so. Moreover, the majority appears to spec-
ulate about trial counsel’s subjective state of mind and the
abstract possibility that counsel might have made a tactical
decision not to request the lesser-included instruction. The
684	                                Pereida-Alba v. Coursey

majority should have focused on the objective reasonable-
ness of trial counsel’s performance as required by Montez.
Viewed objectively, counsel’s failure to request the lesser-
included instruction was not reasonable. I therefore respect-
fully dissent.