Bohanan v. Amsberry

444 P.3d 515, 297 Or. App. 739
CourtCourt of Appeals of Oregon
DecidedMay 30, 2019
DocketA165661
StatusPublished

This text of 444 P.3d 515 (Bohanan v. Amsberry) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bohanan v. Amsberry, 444 P.3d 515, 297 Or. App. 739 (Or. Ct. App. 2019).

Opinion

TOOKEY, J.

*516*740In this proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680, petitioner appeals a limited judgment imposing filing fees. In his sole assignment of error, petitioner contends that the post-conviction court erred "in issuing a limited monetary judgment against" him. For the reasons that follow, we affirm.

"Appellate review of post-conviction proceedings is limited to questions of law appearing in the record." Dillard v. Premo , 296 Or. App. 798, 803, 441 P.3d 609 (2019). We review petitioner's arguments accordingly.

The pertinent facts are not in dispute. Petitioner filed a petition for post-conviction relief pursuant to ORS 138.510 to 138.680. Along with his petition, petitioner filed a motion requesting the "waiver or deferral of all filing fees and court costs associated with the initiation and prosecution of this post-conviction proceeding and for the appointment of suitable counsel to represent petitioner in this proceeding." The motion explained that petitioner had "no tangible assets nor moneys to draw upon to pay the costs associated with initiating and prosecuting this action." Attached to petitioner's motion was a statement detailing the then current balance of, and the transactions in, petitioner's inmate trust account.

Subsequently, the post-conviction court issued an order allowing petitioner to file the petition for post-conviction relief "without immediate payment of the filing fee." The order further provides that "[t]he filing fee is not waived[,] but shall be drawn from and charged against the [petitioner's] Department of Corrections Trust Account per ORS 138.590(a) & (b)." That order also appointed counsel for petitioner.

The post-conviction court then issued a limited judgment captioned "JUDGMENT RE: DEFERRED FEES," which imposed "[f]iling [f]ees" in the amount of $ 252. (Uppercase in limited judgment.)

On appeal, petitioner raises three arguments as to how the post-conviction court purportedly erred. First, petitioner contends that, because petitioner is proceeding as a *741"financially eligible person" pursuant to ORS 138.590, "the executive director of the public defense services is required to pay [petitioner's] filing fee," not petitioner. Second, petitioner contends that the post-conviction court "imposed a $ 252 monetary filing fee under the presumption that this is what is required," but that that presumption was erroneous. Third, petitioner contends that the post-conviction court's "monetary judgment was issued without notice nor opportunity for hearing and without making any findings related to petitioner's ability to pay the filing fee," which petitioner contends "has been held to be improper in numerous other similar contexts."

As context for resolution of petitioner's arguments, we first consider two statutes, ORS 138.560 and ORS 138.590, which we set out in pertinent part below. In construing those statutes, our goal is to discern the legislature's intent, and to do so, we examine the text of the statute in context, along with relevant legislative history and, if necessary, canons of construction. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). "Further, perhaps to state the obvious, any previous construction of the statute is relevant to our analysis." State v. Hutchins , 281 Or. App. 495, 501, 383 P.3d 399 (2016).

ORS 138.560(1) provides, in pertinent part:

"A proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680 shall be commenced by filing a petition with the clerk of the circuit court for the county in which the petitioner is imprisoned ***. Except as otherwise provided in ORS 138.590, *517the petitioner must pay the filing fee established under ORS 21.135 at the time of filing a petition under this section."

ORS 138.560(1) thus establishes a filing fee for petitions seeking post-conviction relief pursuant to ORS 138.510 to 138.680 and requires that that fee be paid by a petitioner at the time the petition is filed, except as otherwise provided in ORS 138.590.

ORS 138.590, in turn, provides, in pertinent part:

"(1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 ***
*742may proceed as a financially eligible person pursuant to this section upon order of the circuit court ***.
"(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding ***, including, but not limited to, the filing fee required by ORS 138.560 ***.

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Related

State v. Gaines
206 P.3d 1042 (Oregon Supreme Court, 2009)
State v. Guzek
906 P.2d 272 (Oregon Supreme Court, 1995)
State v. Vasquez-Rubio
917 P.2d 494 (Oregon Supreme Court, 1996)
State v. Vasquez-Rubio
897 P.2d 324 (Court of Appeals of Oregon, 1995)
State Ex Rel. Baker v. Cook
16 P.3d 1184 (Court of Appeals of Oregon, 2000)
State v. Edmonds
435 P.3d 752 (Oregon Supreme Court, 2019)
Dillard v. Premo
441 P.3d 609 (Court of Appeals of Oregon, 2019)
State ex rel. Palacios v. Rea
39 P.3d 289 (Court of Appeals of Oregon, 2002)
Baldeagle v. Lampert
59 P.3d 545 (Court of Appeals of Oregon, 2002)
State v. Hutchins
383 P.3d 399 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
444 P.3d 515, 297 Or. App. 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohanan-v-amsberry-orctapp-2019.