Ventura v. Cupp

610 P.2d 1232, 289 Or. 135, 1980 Ore. LEXIS 883

• Court: Oregon Supreme Court
• Decided: May 20, 1980
• Docket: TC 107084, CA 15265, SC 26884
• Status: Published

Opinion

LINDE, J.

Petitioner asks for reconsideration of his petition for review of a decision of the Court of Appeals which affirmed a judgment denying him post-conviction relief. Having previously been convicted and sentenced to consecutive terms of imprisonment, petitioner unsuccessfully sought post-conviction relief on the ground that the consecutive sentences were not authorized by law. The Court of Appeals affirmed the denial of relief without opinion, only citing State v. Jones, 250 Or 59, 440 P2d 371 (1968). Ventura v. Cupp, 44 Or App 296, 607 P2d 231 (1980).

Petitioner contends that State v. Jones was superseded by the enactment of the revised criminal code in 1971. Whatever the ultimate merits of that claim, it is not frivolous. Nor is it necessarily foreclosed by the recent decision in State v. Garcia, 288 Or 413, 605 P2d 670 (1980). On the other hand, QRS 138.550(2) provides that after a direct appeal, "no ground for relief may be asserted . . . unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.” Thus apart from State v. Jones, supra, cited by the Court of Appeals for its affirmance, this petition involves the unrelated question whether petitioner’s case falls within some exception to the quoted requirement of ORS 138.550(2), a claim not made or supported in the petition. It seems useful to note this as a renewed caution against unwarranted inferences from a denial of a petition for review. See 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or 41, 584 P2d 1371 (1978). Cf. Barnes v. Paulus, 284 Or 81, 588 P2d 1084 (1978).