Phillips v. Premo

381 P.3d 986, 280 Or. App. 634, 2016 Ore. App. LEXIS 1076
CourtCourt of Appeals of Oregon
DecidedSeptember 8, 2016
Docket09C24378; A154571
StatusPublished
Cited by6 cases

This text of 381 P.3d 986 (Phillips v. Premo) 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
Phillips v. Premo, 381 P.3d 986, 280 Or. App. 634, 2016 Ore. App. LEXIS 1076 (Or. Ct. App. 2016).

Opinions

DUNCAN, P. J.

Petitioner appeals the judgment denying his petition for post-conviction relief (PCR), assigning error to the PCR court’s denial of his motion for a continuance. As explained below, we conclude that the PCR court abused its discretion by denying the motion without affording petitioner an opportunity to make a sufficient record regarding the basis for the motion. Accordingly, we reverse and remand.

Petitioner filed a PCR petition, and an attorney, Cowan, was appointed to represent him in the PCR proceedings. On the day of the PCR trial, petitioner appeared by video from the correctional facility where he was housed, and his attorney appeared in person. When petitioner’s attorney called petitioner as a witness, petitioner moved for a continuance:

“[PETITIONER]: Your Honor, before we begin I’d like to address the Court. I am moving at this time for a continuance of this proceeding.
“THE COURT: That’s not allowed, Mr. Phillips. I’m denying your motion as not timely. Go ahead, Mr. Cowan.
‡ ‡ ‡ ⅜
“ [PETITIONER]: I can’t state something for the record?
“THE COURT: *** Mr. Phillips you’re asking that this be continued, and the answer to that [is] it’s not going to be continued. So, go ahead please.
“ [PETITIONER]: I mean—
“THE COURT: Oh.
“[PETITIONER]: Mr. — well, I’d like to put on the record that Mr. Cowan has been non-responsive to my request to assist me and has completely failed to provide suitable counsel as required for my post conviction proceedings.
“THE COURT: All right.
“[PETITIONER]: Mr. Cowan—
“THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented [636]*636you. I am not going to delay these proceedings based on your belief about that. And if you have a basis for that contention that can be taken up some other time and place, but not now.
“ [PETITIONER]: Well, I’d like to state these—
“THE COURT: Mr. Cowan, would you please begin.
“[PETITIONER]: I’d like to state these issues on the record, Your Honor.
“THE COURT: I don’t want to—
“[PETITIONER]: This is the only time in a post conviction proceedings.
“THE COURT: Well, you have said that you feel he has been unresponsive and not represented you adequately. That’s about as broad as it possibly could be Mr. Phillips.
[It] covers about everything—
“[PETITIONER]: Well, there’s — there’s—
“THE COURT: —that you might later claim. So—
“[PETITIONER]: There’s witnesses—
“THE COURT: —I’m going to ask you sir to not discuss this further. If my failure to listen to you further is some error on my part that can be taken up. Mr. Cowan please go ahead.”

To recap, petitioner moved for a continuance, and the PCR court summarily denied the motion as untimely and directed petitioner’s attorney to proceed. Petitioner then asked if he could “state something for the record,” and the court responded that the case would not be continued and again directed petitioner’s attorney to proceed. Petitioner informed the court that his attorney had been nonrespon-sive and had failed to provide suitable counsel, and the court responded that it would not delay the proceedings and that if petitioner had a basis for his complaints about his attorney that could be “taken up some other time and place [.]” Petitioner said that he wanted to make a record, and the court responded by directing petitioner’s attorney to proceed for the third time. When petitioner repeated that he wanted to make a record, the court said that petitioner’s general complaints about his attorney would “cover about [637]*637everything” petitioner might later claim. When petitioner spoke again, the court asked him to “not discuss this further” and, for the fourth time, directed petitioner’s attorney to proceed.

On appeal, petitioner asserts that the PCR court erred by denying his motion for a continuance. We review the denial of a motion for a continuance for abuse of discretion. State v. Ferraro, 264 Or App 271, 280, 331 P3d 1086 (2014). A court errs if it “fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.” State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987); State v. Romero, 236 Or App 640, 643-44, 237 P3d 894 (2010).

We conclude that the PCR court abused its discretion by denying petitioner’s motion for a continuance without allowing petitioner to make a record regarding the basis for the motion. Whether denial of a motion for a continuance is error depends on the particular circumstances of the case. State v. Ringler, 264 Or App 551, 556, 333 P3d 1080, rev den, 356 Or 575 (2014); State v. Hickey, 79 Or App 200, 203, 717 P2d 1287 (1986). Here, the PCR court refused to afford petitioner an opportunity to identify the relevant circumstances. Consequently, the court was not in a position to make an informed ruling on the motion.

The PCR court initially stated that it was denying petitioner’s motion as untimely, but the court did not provide petitioner an opportunity to explain why he was making the motion when he was. Unanticipated circumstances can arise, and a trial court cannot deny a motion for a continuance simply because the motion is made on the day of trial; whether a court may deny such a motion depends upon the particular circumstances of the case. See Hickey, 79 Or App at 204 (trial court abused its discretion by denying defendant’s day-of-trial motion for a continuance, which was based on the fact that defendant’s attorney’s briefcase had been stolen the day before). A court may deny a day-of-trial motion for a continuance, absent a specific showing of good cause regarding the timing of the motion, but here, because the PCR court refused to allow petitioner to make a record, it did not have the information necessary to determine [638]*638whether petitioner had good cause for making the motion when he did.

Moreover, petitioner was able to alert the PCR court that his motion was related to his concerns about his court-appointed attorney. Depending on what they were, those concerns could have necessitated a continuance. For example, if petitioner’s concern was that his attorney had a conflict of interest, the court would have had to hold a hearing, and, if there was such a conflict, the court would have had to appoint substitute counsel. See Combs v. Baldwin, 161 Or App 270, 276-77, 984 P2d 366 (1999) (holding, in a habeas corpus proceeding, that “it is against reason for a party in a civil case to be required to be represented by appointed counsel against the party’s will and without a hearing on the merits of a claim of conflict of interest”); cf. Elkins v. Thompson,

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Cite This Page — Counsel Stack

Bluebook (online)
381 P.3d 986, 280 Or. App. 634, 2016 Ore. App. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-premo-orctapp-2016.