Ogle v. Nooth

424 P.3d 759, 292 Or. App. 387
CourtCourt of Appeals of Oregon
DecidedJune 13, 2018
DocketA160243
StatusPublished
Cited by3 cases

This text of 424 P.3d 759 (Ogle v. Nooth) 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
Ogle v. Nooth, 424 P.3d 759, 292 Or. App. 387 (Or. Ct. App. 2018).

Opinion

DEHOOG, P.J.

*388Defendant (the superintendent) appeals a judgment granting post-conviction relief to petitioner,1 arguing that the post-conviction court erred in granting relief on a basis that petitioner did not allege in his amended petition for relief. We agree with the superintendent and reverse.

We begin by briefly reviewing the statutes governing post-conviction relief. To initiate post-conviction proceedings, a petitioner must file a petition for relief "set[ting] forth specifically the grounds upon which relief is claimed and *** stat[ing] clearly the relief desired." ORS 138.580. Upon receiving the defendant's response to the petition, the court must hold a hearing "on the issues raised." ORS 138.620(1). "If the petition states a ground for relief, the court shall decide the issues raised ***. The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2). If the petitioner satisfies that burden and thereby establishes one or more of the grounds for relief set forth in ORS 138.530(1), the post-conviction court must grant relief.

Collectively, those statutes limit post-conviction relief to "only *** claims that actually have been alleged in the petition or amended petition." Bowen v. Johnson , 166 Or. App. 89, 93, 999 P.2d 1159, rev. den. , 330 Or. 553, 10 P.3d 943 (2000). As a result, a post-conviction court errs if it grants relief on a basis that the petitioner did not allege in the operative petition. See, e.g. , Leyva-Grave-De-Peralta v. Blacketter , 232 Or. App. 441, 448, 223 P.3d 411 (2009), rev. den. , 348 Or. 114, 228 P.3d 1213 (2010).

Thus, this case turns on what it means, under our case law, for a claim "actually [to] have been alleged in the petition or amended petition." Bowen , 166 Or. App. at 93, 999 P.2d 1159. That is, we must determine whether, as petitioner maintains, the allegations in the petition here encompass the basis on which the post-conviction court granted relief, or *389rather, as the superintendent contends, the court impermissibly granted relief on a basis that the allegations did not encompass. In making that determination, we review the post-conviction court's grant of relief for legal error, Abbott v. Baldwin , 178 Or. App. 289, 291, 36 P.3d 516 (2001), rev. den. , 334 Or. 75, 45 P.3d 449, cert. den. , 537 U.S. 901, 123 S.Ct. 217, 154 L.Ed.2d 174 (2002), and accept the court's findings of historical fact if they are supported by evidence in the record, Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015).

In petitioner's underlying trial, a jury convicted him of assault in the second degree, ORS 163.175, among other offenses. In his amended petition for post-conviction relief, petitioner alleged that he had received inadequate and ineffective assistance of trial counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Specifically, petitioner alleged that his trial attorney performed deficiently in failing to "employ[ ] an *761investigator to investigate the charges against [petitioner] and call[ ] the relevant witnesses to testify on his behalf." Petitioner amplified that allegation as follows:

"Petitioner's central defense was a claim of self-defense. Trial counsel failed to employ an investigator to investigate the charges pending against petitioner or to support his claim of self-defense. Had trial counsel employed an investigator, he would have learned there were at least two available fact witnesses, [petitioner's parents], who observed petitioner after the incident *** and would have testified [that] he complained of a broken rib as a result of the fight with the alleged victim. The witness testimony would have been significant because [it] would have supported petitioner's claim of self-defense to refute the most serious charge of Assault II ***. The witness testimony would have also supported petitioner's overall credibility, which was a central factor for the trier of fact in this case, given the 'he-said, she-said' nature of the facts.

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Related

Ogle v. Nooth
493 P.3d 542 (Court of Appeals of Oregon, 2021)
Ogle v. Nooth
453 P.3d 1274 (Oregon Supreme Court, 2019)
Frazier v. State
442 P.3d 207 (Court of Appeals of Oregon, 2019)

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Bluebook (online)
424 P.3d 759, 292 Or. App. 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogle-v-nooth-orctapp-2018.