Barker v. Baldwin , 179 Or. App. 142 ( 2002 )

38 P.3d 962 (2002) 179 Or. App. 142

Duwane Roy BARKER, Appellant,
v.
George H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Respondent.

CV98-0672; A112896

Court of Appeals of Oregon.

Argued and Submitted December 11, 2001. Decided January 23, 2002.

Jay Edwards, Salem, argued the cause and filed the brief for appellant.

Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

PER CURIAM.

Petitioner appeals from the denial of post-conviction relief from his convictions for rape, sodomy, and sexual abuse of a juvenile. We affirm.

The state acknowledges, and we agree, that petitioner's criminal defense counsel breached the standard of constitutionally adequate representation by failing to object to—and, indeed, by agreeing to—petitioner being handcuffed in the jury's presence without any demonstration of need for the restraints. See Davis v. Armenakis, 151 Or. App. 66, 69-70, 948 P.2d 327 (1997), rev. den. 327 Or. 83, 961 P.2d 217 (1998). See also Guinn v. Cupp, 304 Or. 488, 498, 747 P.2d 984 (1987) (post-conviction petitioner can "make a prima facie case simply by showing that he or she was shackled during the trial and that no record was made in the trial court to support the decision to shackle"); State v. Kessler, 57 Or.App. 469, 645 P.2d 1070 (1982) (addressing shackling issue raised on direct appeal). However, we further determine, as did the post-conviction trial court, that petitioner was not prejudiced by counsel's default, in that the presence of handcuffs was "harmless beyond a reasonable doubt." See Davis, 151 Or.App. at 72, 948 P.2d 327 (incorporating constitutional harmless error standard into prejudice inquiry in post-conviction relief proceeding arising from counsel's failure to object to shackling). In particular, we conclude, based on our review of the record, that the evidence of petitioner's guilt was overwhelming, rendering counsel's default nonprejudicial. See, e.g., id.; State v. Schroeder, 62 Or.App. 331, 661 P.2d 111, rev. den. 295 Or. 161, 668 P.2d 380 (1983) (addressing, on direct appeal, prejudice from shackling).

Affirmed.