Perez-Rodriguez v. State

435 P.3d 746, 364 Or. 489
CourtOregon Supreme Court
DecidedFebruary 28, 2019
DocketCC C152724CV (SC S065022)
StatusPublished
Cited by6 cases

This text of 435 P.3d 746 (Perez-Rodriguez v. State) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez-Rodriguez v. State, 435 P.3d 746, 364 Or. 489 (Or. 2019).

Opinions

NELSON, J.

*747**491Under the Post-Conviction Hearing Act (PCHA), a petition for post-conviction relief must generally be filed within two years of a criminal defendant's conviction becoming final. ORS 138.510(3). That statute of limitations, however, is subject to an escape clause, allowing an untimely petition if the post-conviction court "finds grounds for relief asserted which could not reasonably have been raised" within the limitations period. Id.

We allowed review of two cases-this case, and Gutale v. State of Oregon , 285 Or. App. 39, 395 P.3d 942 (2017) -that require us to interpret the meaning and scope of that escape clause. In both cases, petitioners alleged that their trial counsels were constitutionally ineffective and inadequate under the state and federal constitutions, based on the failure of those attorneys to provide petitioners with information regarding the immigration consequences of their guilty pleas. See Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (requiring counsel to inform a criminal defendant of clear immigration consequences of a plea and, where consequences are not clear, to advise that plea may carry a risk of adverse immigration consequences). And petitioners in both cases alleged that their claims fell within the escape clause because they learned of their counsel's inadequacy only when they were put in deportation proceedings after the statute of limitations had run. Both petitioners argued that they should not have been presumed to know the law any sooner than that.

But there are some differences between the cases. In this case, but not in Gutale , petitioner was told at the time of his plea that there might be immigration consequences to his conviction, even though he was not told that there certainly would be immigration consequences. Compare Gutale v. State of Oregon , 364 Or. 502, 519, 435 P.3d 728 (2019). Additionally, in this case, but not in Gutale , petitioner alleged that his mental illness and intellectual disability prevented him from knowing that he had a claim for post-conviction relief within the two-year limitations period.

The state moved to dismiss, arguing that petitioner could not obtain relief under the escape clause because the **492laws underlying petitioner's claim were reasonably available to him. The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed without opinion. Perez-Rodriguez v. State of Oregon , 284 Or. App. 890, 393 P.3d 1209 (2017). For the reasons stated below, we affirm the decision of the Court of Appeals and the judgment of the post-conviction court.

We take the historical facts from the allegations in petitioner's pleadings and attachments. See Verduzco v. State of Oregon , 357 Or. 553, 555 n. 1, 355 P.3d 902 (2015) (taking undisputed facts from petitioner's pleadings and attachments). Petitioner is a lawful permanent resident who immigrated to the United States from Argentina in 1977, when he was about six years old. On August 27, 2011, petitioner went to the Emergency Department at Saint Vincent's Hospital in Washington County. He began acting erratically in the waiting room, and ultimately attacked and injured a security guard who was attempting to assist him. When law enforcement arrived and read petitioner his Miranda rights, petitioner said, "I didn't do anything wrong," and, "I hear voices and I wish I wouldn't listen to them."

On January 6, 2012, petitioner pleaded guilty to attempted assault in the second degree, a class C felony. ORS 161.405(2)(C). His plea petition provided:

"12. In addition to the sentence imposed, I understand that there may be other significant consequences if I enter a 'Guilty' or 'No Contest' plea, including, but not limited to:
"If I am not a United States citizen, deportation/removal, exclusion from future entry into the United States, or denial of naturalization[.]"

An attorney certification on the plea petition stated: "I have explained to my client the maximum penalty and other consequences of entering a guilty or no contest plea, including possible immigration consequences."

At petitioner's sentencing hearing, defense counsel explained to the court that petitioner *748"unfortunately has had a long history of suffering from significant mental health problems and on this date was not on his normal, **493prescribed medication." The trial court ordered a mental health evaluation as a condition of post-prison supervision and strongly encouraged petitioner to stay on his psychiatric medications in the future. The court did not inform petitioner that his conviction could result in potential immigration consequences, as is required under ORS 135.385(2)(d) (requiring court to inform noncitizen defendants who plead guilty that "conviction of a crime may result *** in deportation, exclusion from admission to the United States or denial of naturalization"). Petitioner received a sentence of 36 months in prison, three years of post-prison supervision, and fees. That criminal proceeding was final when the trial court entered the judgment on February 16, 2012.

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Cite This Page — Counsel Stack

Bluebook (online)
435 P.3d 746, 364 Or. 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-rodriguez-v-state-or-2019.