Bartz v. State, CV-0091-TM

Decision Date01 October 1992
Docket NumberCV-0091-TM,C-11681
Citation839 P.2d 217,314 Or. 353
PartiesRussell B. BARTZ, Petitioner on Review, v. STATE of Oregon, Respondent on Review. Homer BRITAIN, Petitioner on Review, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent on Review. Deschutes County CC 90-; CA A67398; SC S38915, Marion County CC 90-; CA A67827; SC S39107.
CourtOregon Supreme Court

Jay Edwards, Salem, argued the cause and filed the petition for petitioner on review Britain.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondents on review.

GRABER, Justice.

These cases 1 present questions concerning the meaning and constitutionality of ORS 138.510(2), a provision of the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680. As amended in 1989, ORS 138.510(2) imposes a 120-day period of limitation on the filing of petitions for post-conviction relief. It also provides an exception:

"(2) A petition pursuant to [the PCHA] must be filed within 120 days of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

"(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

"(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts."

Each of the petitioners filed a petition for post-conviction relief more than 120 days after his judgment of conviction was entered in the register. Neither petitioner filed an appeal. Petitioners' convictions became final after the 1989 amendment to ORS 138.510(2) took effect. Therefore, the 120-day time limit applies. See Boone v. Wright, 314 Or. 135, 836 P.2d 727 (1992) (1989 amendment to ORS 138.510(2) does not apply to petitions filed by persons whose convictions became final before the effective date of the amendment). In each of these cases, the defendant filed a motion to dismiss the petition as untimely under ORS 138.510(2), and in each case the post-conviction court dismissed the petition.

Petitioners appealed. Petitioner Bartz contended that he falls within the exception described in ORS 138.510(2). Alternatively, he contended that the statute is unconstitutional on two grounds: that it suspends the writ of habeas corpus, in violation of Article I, section 23, of the Oregon Constitution, 2 and Article I, section 9, clause 2, of the Constitution of the United States; 3 and that it violates his Fourteenth Amendment right to due process of law. 4 Petitioner Britain argued that ORS 138.510(2) is inconsistent with another provision of the PCHA, ORS 138.530(2). He also challenged the constitutionality of the provision on the ground that it impermissibly suspends the writ of habeas corpus, citing Article I, section 23, of the Oregon Constitution.

The Court of Appeals held that petitioner Bartz was not excused from filing his petition within the 120-day limitation period and that ORS 138.510 is not unconstitutional for the reasons that Bartz advanced. Accordingly, that court affirmed the dismissal of Bartz's petition for post-conviction relief. Bartz v. State of Oregon, 110 Or.App. 614, 825 P.2d 657 (1992). The Court of Appeals also affirmed the dismissal We allowed both post-conviction petitioners' petitions for review to address the important issues raised and now affirm. Petitioner Bartz's claim does not fall within the exception to the 120-day limitation period, and ORS 138.510(2) is consistent with ORS 138.530(2). ORS 138.510(2) neither suspends the writ of habeas corpus nor violates petitioners' federal due process rights.

of petitioner Britain's petition for post-conviction relief. Britain v. Maass, 111 Or.App. 438, 825 P.2d 657 (1992).

THE MEANING OF ORS 138.510(2)

A. The Exception.

Petitioner Bartz pleaded guilty to rape in the third degree, ORS 163.355, and was placed on probation. He did not appeal. Therefore, his conviction became final on the day that the judgment of conviction was entered in the register. One hundred forty-five days later, Bartz filed a petition for post-conviction relief. In it, he asserted that his trial counsel had failed to advise him of a possible statutory defense to the charge and that he did not learn of the defense within 120 days after his conviction became final. Bartz contends that, because his trial counsel failed to advise him of an available statutory defense, he could not reasonably have known of that defense within the 120-day period and that he therefore falls within the exception provided in ORS 138.510(2).

We are called on to interpret this passage in ORS 138.510:

"(2) A petition pursuant to [the PCHA] must be filed within 120 days of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition [.]" (Emphasis added.)

The Court of Appeals majority interpreted the emphasized clause to permit a petitioner to file a late petition whenever the petitioner alleges and proves that the grounds for relief asserted could not reasonably have been raised within 120 days after the petitioner's conviction became final. Bartz v. State of Oregon, supra, 110 Or.App. at 617-18, 825 P.2d 657. The dissent countered that "the language of [ORS 138.510(2) ] makes the availability of any extraordinary relief expressly contingent on the filing of an original timely petition." Id. at 621, 825 P.2d 657 (Buttler, P.J., dissenting) (emphasis in original). We agree with the Court of Appeals majority.

Our task in interpreting a statute is to discern the intent of the legislature. ORS 174.020; State ex rel Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991). We begin with the text and context of the statute. ORS 174.010; Boone v. Wright, supra.

In this instance, the words of the statute do not clearly express the legislature's intention. ORS 138.510(2) is ambiguous concerning whether the exception applies to all late-filed petitions, or whether it is limited to late-filed petitions filed by persons who filed an earlier, timely petition.

When the text and context of the statute do not make the legislature's intention clear, we turn to the legislative history to aid us in construing the statute. Boone v. Wright, supra. The legislative history of ORS 138.510(2) is silent on the present question. The wording of the last clause in ORS 138.510(2) was borrowed verbatim from ORS 138.550(3), which limits the substantive grounds for relief claimed in a subsequent petition to those raised in an original or amended petition. The legislative committees involved did not discuss the appropriateness of that wording in this context. 5

We next consider the purpose of the exception in ORS 138.510(2). See McKean-Coffman v. Employment Div., 312 Or. 543, 550, 824 P.2d 410 (1992) (in addition to considering the wording and the legislative history of a statute, court considered its The next question is whether the ground for relief asserted by petitioner Bartz--the failure of his trial counsel to advise him of a possible statutory defense--is one that could not reasonably have been raised within 120 days after Bartz's conviction became final. ORS 138.510(2) does not explain precisely what kinds of circumstances fulfill the statutory requirement that an untimely petition assert a ground for relief that "could not reasonably have been raised" in a timely petition. We therefore examine the legislative history of that requirement.

purpose). The purpose of the exception is to give persons extra time to file petitions for post-conviction relief in extraordinary circumstances. See discussion of purpose and scope of exception at 220-221, post. That purpose applies equally to persons who did and persons who did not file an earlier, timely petition. We hold that the exception in ORS 138.510(2) does not require the filing of a timely "original or amended" petition as a prerequisite to the filing of an untimely petition.

The 1989 amendments to ORS 138.510 to 138.580 were intended to reduce the costs of the state's indigent defense programs. Minutes, House Committee on the Judiciary, Subcommittee on Civil and Judicial Administration, June 12, 1989, pp 9-11. Limiting the time within which convicted persons may file petitions for post-conviction relief was one of several cost-cutting methods proposed. Id. at p 9. During hearings on the amendments in the House Judiciary Subcommittee on Crime and Corrections, it was suggested that, if a time limitation were adopted, it contain an exception or "escape clause." Minutes, House Committee on the Judiciary, Subcommittee on Crime and Corrections, March 9, 1989, p 4.

Discussion of the scope of the "escape clause" took place in two subcommittees of the House Committee on the Judiciary. 6 In the Subcommittee on Crime and Corrections, a representative of the Justice Department noted the importance of such a provision in cases where evidence is newly discovered after the expiration of the limitation period. Minutes, Subcommittee on Crime and Corrections, March 9, 1989, p 4. A representative of the Oregon Criminal Defense Lawyers Association testified to the Subcommittee on Civil and Judicial Administration that he would support the 120-day time limitation if an exception were made where "extraordinary circumstances" were shown. As examples, he mentioned convictions procured by collusion between a prosecutor and a defense lawyer, but coming to light after the limitation period, and situations in which the statute under which the conviction was obtained is later declared facially unconstitutional. Minutes, House Committee on the Judiciary, Subcommittee on Civil and Judicial Administration, June 12, 1989, pp 13-14. 7

In general, those...

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