Corona v. Amsberry

393 P.3d 248, 284 Or. App. 414, 2017 Ore. App. LEXIS 384
CourtCourt of Appeals of Oregon
DecidedMarch 22, 2017
DocketCV132097; A156160
StatusPublished
Cited by1 cases

This text of 393 P.3d 248 (Corona 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
Corona v. Amsberry, 393 P.3d 248, 284 Or. App. 414, 2017 Ore. App. LEXIS 384 (Or. Ct. App. 2017).

Opinion

HADLOCK, C. J.

Petitioner was convicted of multiple crimes in 2006 and sentenced to a lengthy period of incarceration. He initiated this post-conviction proceeding in 2013 by filing a pro se claim for post-conviction relief in which he raised a single claim of ineffective assistance of trial counsel, premised on several alleged deficiencies in representation. The post-conviction court dismissed that petition before appointing counsel to represent petitioner, and petitioner appeals. For the reasons set out below, we conclude that the post-conviction judgment is not appealable. Accordingly, we dismiss.

Petitioner’s pro se petition for post-conviction relief alleged, as noted, a single claim of ineffective assistance of trial counsel, based on a list of seven specific ways in which petitioner claimed that his lawyer performed deficiently. The petition also includes an allegation that petitioner had previously—and unsuccessfully—sought post-conviction relief on at least some of the same convictions that form the basis for his post-conviction claim in this case. Petitioner moved for appointment of counsel to represent him in the post-conviction proceeding. Without appointing counsel for petitioner, the post-conviction court issued an order to show cause why the petition should not be dismissed for being time-barred and successive. Petitioner responded, largely claiming that “several claims should have been raised” in the earlier proceeding and that he wished to “introduce new evidence.”

The post-conviction court then entered an order in which it ruled that the case should be dismissed. In explaining its ruling, the court used a preprinted or computer-generated form of order in which it indicated that dismissal was “because” of four listed reasons (each bullet point below represents a box that the court checked on the order):

• “The Petition is an improper time-barred Petition under ORS 138.510.”
• “The Petition is a successive petition to [another case] and the claims could reasonably have been or were previously raised, and are prohibited under ORS 138.550.”
• “The Petition liberally construed fails to state a claim upon which relief may be granted and may be dismissed under ORS 138.525.”
[416]*416• “The Petition fails to meet the requirements of ORS 138.570 and/or 138.580.”

The court subsequently entered a judgment dismissing the petition without prejudice. The judgment, too, was created using a form. It begins by stating that the “proceeding is dismissed” and then sets out a list of possible reasons for dismissal, each with a corresponding box that the court may (or may not) check, followed by blank lines for additional explanation. In this case, the court checked two boxes, one indicating that the petition “is dismissed as mer-itless” under ORS 138.525, and the second indicating that dismissal is without prejudice. On the blank lines allowed for further explanation, the court added “and for the other reasons set forth on the order.”

Petitioner appeals, arguing that the post-conviction court erred when it dismissed the petition before deciding petitioner’s motion for appointment of counsel. Defendant superintendent makes two primary arguments in response. First, he contends that we lack jurisdiction over petitioner’s appeal because a judgment dismissed as meritless under ORS 138.525(1) is not appealable. Second, he asserts that petitioner did not preserve his argument that he was entitled to have counsel appointed before the post-conviction court dismissed his petition.

We agree with the superintendent that the judgment in this case is not appealable. As described above, that judgment expressly dismisses the post-conviction petition under ORS 138.525 “as meritless.” If that were all the judgment said, it would indisputably not be appealable. ORS 138.525(3) (“[A] judgment dismissing a meritless petition is not appealable[.]”); Young v. Hill, 347 Or 165, 173-74, 218 P3d 125 (2009) (“The policy that the legislature has adopted * * * is an unqualified one—no appeal lies from any judgment dismissing a petition for post-conviction relief for failure to state a claim.”). It is only because the judgment goes on to state that the court is dismissing “and for the other reasons set forth on the order”—i.e., that the petition is successive, time-barred, and fails to meet the requirements of ORS 138.570 and ORS 138.580—that some question arises.

[417]*417Our analysis begins with ORS 138.525, which provides both that a post-conviction court may “enter a judgment denying a meritless petition” and that “a judgment dismissing a meritless petition is not appealable.” ORS 138.525(1), (3). A “meritless petition” is “one that, when liberally construed, fails to state a claim upon which post-conviction relief may be granted.” ORS 138.525(2). Dismissal for a different reason, such as that a petition is time-barred or successive, is not dismissal on the basis that the petition is meritless. Hayward v. Premo, 281 Or App 113, 116-17, 383 P3d 437, rev den, 360 Or 751 (2016).

To determine whether a post-conviction judgment that incorporates some mention of “meritlessness” is appeal-able notwithstanding ORS 138.525(3), we must consider at least two aspects of the judgment. First, ORS 138.525(3) will preclude appeal of the judgment only if the judgment dismissed the entire petition as meritless. If the post-conviction court rejected some, but not all, grounds for relief as merit-less, then the resulting judgment will not have dismissed the petition as meritless, and ORS 138.525(3) will not bar appeal of that judgment. See Hayward, 281 Or App at 117 (ORS 138.525

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Related

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412 P.3d 1208 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
393 P.3d 248, 284 Or. App. 414, 2017 Ore. App. LEXIS 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corona-v-amsberry-orctapp-2017.