Aponte v. State

Decision Date08 June 2022
Docket NumberA175010
Parties Richard R. APONTE, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
CourtOregon Court of Appeals

Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent.

Before James, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.


In this post-conviction proceeding, petitioner appeals a judgment dismissing his claim of inadequate assistance of counsel—a claim asserted in a successive petition filed 13 years after petitioner's criminal conviction. The post-conviction court dismissed the petition as untimely and successive after concluding that the claim did not come within the escape clauses in ORS 138.510(3) and ORS 138.550(3). Petitioner argues that the court erred, because, due to an intellectual disability, he could not reasonably have raised the claim earlier. For the following reasons, we affirm.


In 2006, while serving a life sentence without parole in Florida, petitioner confessed to a cold-case murder in Oregon. He pleaded no-contest to one count of aggravated murder, was convicted of that crime, and was sentenced to life in prison without the possibility of parole (with his Oregon sentence to run consecutively to his Florida sentence). In 2007, petitioner, who was represented by counsel, petitioned for post-conviction relief, alleging, among other things, that his trial counsel had provided constitutionally inadequate assistance by failing to have petitioner evaluated for mental competence. That post-conviction petition was denied. A second post-conviction petition filed in 2016 also was denied.

In 2019, petitioner filed his third post-conviction petition, which is the subject of this appeal. In the operative version of his third petition, petitioner claims that his trial counsel provided constitutionally inadequate assistance by failing to inform him that, under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d. 335 (2002), and the Eighth Amendment prohibition on cruel and unusual punishment, "petitioner's intellectual disabilities made him ineligible to receive a death sentence." According to petitioner, that deficiency in representation resulted in his entering a plea that was not "knowing, voluntary, or intelligent," as he pleaded no-contest to avoid the death penalty.

As for the untimely and successive nature of this post-conviction claim, petitioner asserts that it is not barred because it comes within the escape clauses in ORS 138.510(3) and ORS 138.550(3). A post-conviction petition generally must be filed within two years of conviction to be timely (with the exact start date depending on whether an appeal is taken), but an escape clause applies if the court finds that the grounds for relief asserted "could not reasonably have been raised" within the two years. ORS 138.510(3) ; Gutale v. State of Oregon , 364 Or. 502, 504, 435 P.3d 728 (2019). Similarly, all post-conviction claims generally must be raised in a single proceeding, rather than successive proceedings, but an escape clause applies if the court finds that the grounds for relief asserted "could not reasonably have been raised" in a prior petition. ORS 138.550(3) ; Eklof v. Persson , 369 Or. 531, 533, 508 P.3d 468 (2022).

Petitioner's claim is both untimely and successive, so he invokes both escape clauses, making a unified argument as to both.1 Petitioner argues that his current claim could not reasonably have been raised earlier because, according to his declaration in support of the petition, at all material times "and continuing to the present, petitioner has suffered from mental retardation secondary to a brain injury

he likely sustained early in life." He further declares that "[a]s a result of his mental defect, petitioner's ability to meaningfully process and understand information conveyed to him by others is substantially impaired" and that he "never knew about Atkins " because of his "mental problems." The petition includes evidence that neurological testing performed on petitioner in 2000 puts him "in the range of borderline intelligence," with results consistent with "some kind of brain injury early in life," as well as evidence that petitioner was enrolled in special-education classes for his "entire life."

The post-conviction court granted summary judgment in favor of the superintendent and dismissed petitioner's claim, based on its conclusion that the third petition was untimely and successive and that the asserted claim did not come within the escape clauses in ORS 138.510(3) and ORS 138.550(3).


Petitioner appeals, raising a single assignment of error in which he asserts that the post-conviction court erred by granting summary judgment for the superintendent and dismissing petitioner's claim. As we explain below, we agree with the superintendent that the disposition of this case is controlled by Perez v. Cain , 367 Or. 96, 113, 473 P.3d 540 (2020), and Ingle v. Matteucci , 315 Or.App. 416, 501 P.3d 23 (2021), rev allowed , 369 Or. 675, 508 P.3d 500 (2022). Perez was decided a month before the summary judgment hearing in this case but does not appear to have been brought to the post-conviction court's attention. Ingle was decided after the parties filed their appellate briefs, but it largely summarizes prior case law. Because both Perez and Ingle discuss Gutale , and because petitioner's appellate arguments focus on Gutale , we start with Gutale .

In Gutale , the petitioner pleaded guilty to and was convicted of a Class A misdemeanor and, years later, learned—when deportation proceedings were instituted against him—that there were immigration consequences to his plea. 364 Or. at 504, 435 P.3d 728. The petitioner had told the court at sentencing that he was pleading guilty in part because he wanted to obtain United States citizenship, yet neither his trial counsel nor the trial court informed him that his conviction could have immigration consequences, as both were legally required to do. Id. at 504-05, 435 P.3d 728. In his post-conviction proceeding, the petitioner asserted that, because of the omissions of his trial counsel and the trial court, "he did not know that his conviction could affect his immigration status and that he remained unaware of that fact until he was detained by ICE after the [two-year] limitations period expired." Id. at 520, 435 P.3d 728.

The Supreme Court held that a triable issue existed as to whether Gutale's untimely petition came within the escape clause in ORS 138.510(3). The court explained that, in evaluating whether the claim could reasonably have been raised within two years of conviction, it was necessary to assess "both whether the petitioner reasonably could have accessed the ground for relief and whether a reasonable person in the petitioner's situation would have thought to investigate the existence of that ground for relief." Id. at 511, 435 P.3d 728. The court decided that a triable issue existed as to whether a reasonable person in Gutale's situation would have had reason to investigate a potential claim related to immigration consequences. Id. at 512-13, 435 P.3d 728. In reaching that conclusion, the court emphasized that Gutale was unrepresented for the two years that the statute of limitations was running, such that reasonableness was measured from his perspective, not a lawyer's. Id. at 519, 435 P.3d 728. The court also explained that, while the very fact of a criminal conviction puts one "on notice of the need to investigate the existence of a ground for [post-conviction] relief," at which point it is "incumbent on the petitioner to look for legal challenges to his conviction," the fact of a criminal conviction may not put one on notice of the need to investigate collateral immigration consequences. Id . at 512, 435 P.3d 728.

A year after Gutale , the Supreme Court decided Perez . In Perez , the petitioner pleaded guilty to two counts of aggravated murder, based on crimes that he committed when he was 14 years old. 367 Or. at 97, 473 P.3d 540. Eleven years later, he filed an untimely and successive petition for post-conviction relief, raising constitutional claims related to his youth at the time of the crimes. Id. The post-conviction court dismissed the claims as untimely and successive, concluding that they did not come within the escape clauses in ORS 138.510(3) and ORS 138.550(3), because the petitioner could reasonably have raised them eight years earlier in his first (and timely) post-conviction petition. Id. On review, the petitioner relied on Gutale to argue that his young age when the first petition was filed (17 or 18 years old) should have been considered in the escape-clause analysis, because "his status as a youth would have made it even more difficult to comprehend the significance of the statute [regarding trying juveniles as adults] or understand the ways in which he was prejudiced by its application to him." Id . at 112, 473 P.3d 540.

The Supreme Court rejected that argument, pointing to a critical difference between Gutale and the petitioner's case: "Petitioner was represented by counsel in his first post-conviction proceeding." Id. The court explained that "to the extent that Gutale made the petitioner the subject of the reasonableness inquiry, it did so only for the escape clause in ORS 138.510(3), and in a case where the petitioner had not been represented by counsel in either an appeal or a prior post-conviction proceeding." Id . at 113, 473 P.3d 540. Because Perez had been represented by counsel in a prior post-conviction proceeding, the "appropriate question" was whether he "reasonably could, through counsel , have raised the claims." Id . (emphasis added). That is, the question was "whether a claim reasonably could have been raised from counsel's perspective; petitioner's...

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