Perkins v. Tarno

901 P.2d 953, 136 Or. App. 409, 1995 Ore. App. LEXIS 1204
CourtCourt of Appeals of Oregon
DecidedSeptember 6, 1995
Docket93CV0184, 92CV1095; CA A79791 (Control), A79792
StatusPublished
Cited by1 cases

This text of 901 P.2d 953 (Perkins v. Tarno) 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
Perkins v. Tarno, 901 P.2d 953, 136 Or. App. 409, 1995 Ore. App. LEXIS 1204 (Or. Ct. App. 1995).

Opinion

De MUNIZ, J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. We affirm.

Petitioner was convicted of assault in the fourth degree, menacing, driving under the influence, carrying a dangerous weapon with the intent to use it, felon in possession of a firearm and unauthorized use of a motor vehicle. The charges arose from a September 18, 1991, incident of domestic violence involving petitioner and his wife. Petitioner did not appeal.

Petitioner sought post-conviction relief alleging inadequate assistance of counsel. Counsel was appointed, and he filed an amended petition and a motion requesting a transcript of petitioner’s trial and the sentencing hearing. Respondent did not oppose the motion. The post-conviction court ordered a transcript of the sentencing, but denied the remainder of petitioner’s motion on the ground that the petition was “insufficient to allow further transcript.” After trial, the court denied petitioner relief. Petitioner then moved for reconsideration, and the court denied the motion.

In his first assignment, petitioner argues that the court abused its discretion when it denied his request for a trial transcript.1 ORS 138.590(5) provides, in part:

“When a petitioner has been ordered to proceed as an indigent person, the expenses which are necessary for the proceedings upon the petition in the circuit court and the compensation to appointed counsel for petitioner as provided in this subsection shall be paid by the state from funds available for the purpose.”

The purpose of the statute is to grant an indigent petitioner the necessary expenses for the proceeding. Jack G. Collins & Carl R. Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, 351-52 (1960). One expense is for transcripts of the [412]*412conviction proceedings, id., which may be used to show the events occurring at the trial. ORS 138.630.

Neither party cites Oregon case law regarding the standards to apply in determining when to order a transcript at state’s expense for a post-conviction proceeding. Petitioner argues that the post-conviction court’s exercise of discretion in ordering a transcript is subject to an indigent person’s federal constitutional rights. He contends that he showed that there were issues in the post-conviction proceeding that could only be resolved with a trial transcript, and that that shows a “colorable need” for a complete transcript. He contends that, absent any objection to the motion from respondent, he had an absolute right to the production of the transcript, and that denial of the transcript violated his constitutional rights to due process and equal protection. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979); Mayer v. City of Chicago, 404 US 189, 92 S Ct 410, 30 L Ed 2d 372 (1971).

Respondent’s position is that petitioner’s right to a transcript is subject to the same showingrequired under ORS 138.500(3)2 (formerly numbered ORS 138.500(2)), as construed in Acocella and State v. Bonner, 66 Or App 1, 4-5, 672 P2d 1333 (1983). Those cases considered constitutional implications in determining what an indigent defendant must show to obtain a transcript for purposes of a direct appeal. Only those portions of the transcript that are “necessary” and “material” to a defendant’s assignments of error must be provided. Acocella, 288 Or at 183. Identification of possible error is a joint effort between appellate counsel and trial counsel:

“[AJppellate counsel (especially counsel newly appointed for the appeal) cannot reasonably be called on to assert in a motion to be furnished a free transcript every point that review of the transcript might disclose. Matters of ‘plain error’ aside, it is not strikingly reasonable to impose a ‘remember or waive’ rule on trial counsel, and it is patently unreasonable to limit new counsel in any such way. Acocella does not impose on appellate counsel who did not try the case [413]*413a duty to make contact with trial counsel and on trial counsel to make himself or herself available to and cooperate with appellate counsel. * * *
“Appellate counsel’s affidavit in support of a transcript motion must reflect contact with trial counsel and, in reasonable detail, trial counsel’s efforts to assist, including trial counsel’s recollections of specific trial court rulings on objections, jury instructions given or requested and pretrial motions and rulings.” Bonner, 66 Or App at 4-5 (footnote omitted).

However, a post-conviction proceeding is not intended to provide a second appeal, Delaney v. Gladden, 232 Or 306, 308, 374 P2d 746 (1962), and post-conviction counsel has different obligations in pursuing a post-conviction claim than appellate counsel has in pursuing a direct appeal. As we explained in McClure v. Maass, 110 Or App 119, 123-24, 821 P2d 1105 (1991), rev den 313 Or 74 (1992):

“Church [v. Gladden, 244 Or 308, 311, 417 P2d 993 (1966)] establishes that a post-conviction petitioner has the responsibility to see that all issues that he wants raised in the post-conviction proceeding are brought to the court’s attention.
“Obviously appointed counsel may seek to amend the petition to allege petitioner’s claims more artfully or to include additional meritorious issues that the petitioner did not discover. However, once appointed, post-conviction counsel is not obligated to scour the record to unearth every conceivable challenge to the lawfulness of the petitioner’s conviction or sentence. The responsibility for discerning and selecting the issues for litigation rests with the petitioner.”

The interests of trial counsel and appellate counsel in a direct appeal are identical: to identify prejudicial error in a defendant’s conviction. That identity of purpose does not necessarily exist in a post-conviction proceeding where the allegation is ineffective assistance of counsel for failure to do certain things at trial. An error committed by a trial court is not the same as counsel’s error in representing a client at trial.

Accordingly, we conclude that an affidavit in support of a request for a transcript in a post-conviction proceeding [414]*414need not necessarily contain information provided by trial counsel. Information as to error committed by trial counsel can be obtained from the petitioner or, possibly, from the trial judge. Whatever the source, however, the affidavit must provide the post-conviction court with information beyond a general allegation that error might have been committed at trial. Under Acocella, generalities do not establish a “color-able need” for a transcript for an indigent defendant on appeal. Petitioner does not contend, and we do not so conclude, that the obligation of the state to furnish a free transcript for a post-conviction proceeding is any greater than the obligation owed to an indigent defendant on appeal.

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Bluebook (online)
901 P.2d 953, 136 Or. App. 409, 1995 Ore. App. LEXIS 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-tarno-orctapp-1995.