BENITEZ-CHACON v. State

• Decision Date: 19 December 2001
• Citation: 37 P.3d 1035,178 Or. App. 352
• Parties: Ana Maria BENITEZ-CHACON, Respondent, v. STATE of Oregon, Appellant.
• Court: Oregon Court of Appeals

37 P.3d 1035

178 Or. App. 352

Ana Maria BENITEZ-CHACON, Respondent, v. STATE of Oregon, Appellant.

C99-1251-CV; A111365

Court of Appeals of Oregon.

Argued and Submitted August 13, 2001.

Decided December 19, 2001.

Kaye E. McDonald, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Brian Patrick Conry, Portland, argued the cause and filed the brief for respondent.

Before HASELTON, Presiding Judge, and LINDER ¹ and WOLLHEIM, Judges.

LINDER, J.

The state appeals a judgment in a post-conviction case granting petitioner post-conviction relief on the ground that petitioner's trial counsel failed to inform her fully and adequately of the immigration consequences of a no contest plea. On appeal, the state challenges the post-conviction court's denial of its motion to dismiss the petition as time barred, as well as the post-conviction court's determination that petitioner was entitled to relief on the merits of the petition. Because we conclude that the petition was time barred, we reverse without reaching the petition's merits.

Petitioner is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident. As a result of a search of petitioner's residence in 1992, she was charged with six crimes. Pursuant to plea negotiations, in exchange for dismissal of the remaining charges, she pleaded no contest to one charge of delivery of a controlled substance as part of a commercial drug offense. Her attorney believed that the no contest plea was in her interest because the evidence against petitioner on at least three of the charges was overwhelming, and the attorney thought that a conviction on only the delivery charge might increase the odds that petitioner would be sentenced to optional probation or be given a downward departure. In advising petitioner, the attorney told her that a conviction on the delivery charge might subject her to deportation, and he also went over a paragraph of the written plea petition that effectively so advised her. Petitioner's trial attorney did not give her more specific immigration advice or otherwise research the precise consequences that might flow under the applicable immigration laws and rules. Several years after petitioner's conviction, an immigration judge ordered petitioner's deportation. Petitioner claimed in her post-conviction petition that she would not have pleaded no contest had she been advised more fully and specifically of the likelihood of deportation in her particular circumstances.

In its motion to dismiss the petition, the state argued that, when petitioner's conviction became final, ORS 138.510(2) (1991) provided a 120 day statute of limitations for post-conviction relief and that petitioner did not file her petition within that time.² The state argued, alternatively, that, even if the petition was subject to a 1993 amendment expanding the statute of limitations to two years (see ORS 138.510(2) (1993)), the petition remained untimely because it was filed well beyond that time. The state recognized that petitioner could file her petition if her claim fit within the so-called "escape clause" contained in ORS 138.510(3), which permits a petition to be filed after the statutory time period if it asserts a ground for relief that could not have reasonably been raised timely. The state urged, however, that petitioner's claim that she was not adequately advised of the immigration consequences of her conviction did not qualify as such a ground.

In response, petitioner in essence asserted that the statute of limitations in ORS 138.510(2) (1991) encompasses a "discovery" rule: "[t]he very earliest time a statute of limitations can be construed to begin to run is when the injury that occurred is first discovered by the injured party." Petitioner asserted that she did not discover her injury from her attorney's allegedly inadequate advice until October 29, 1998, when an immigration judge ordered her to be deported. She filed her petition for post-conviction relief on November 2, 1999, less than two years after that order. In petitioner's view, the time for filing her petition did not begin to run until her injury was discovered, at which point the amended two-year statute of limitation was in effect. Thus, petitioner asserted, her petition was timely. The post-conviction court denied the state's motion to dismiss without explanation.

We agree with the state that Bartz v. State of Oregon, 314 Or. 353, 356-60, 839 P.2d 217 (1992), is largely controlling and that, under Bartz, the petition was time barred. In Bartz, the petitioner was subject to the 120-day statute of limitations in ORS 138.510(2) (1989), but failed to file his petition until 145 days after his conviction became final. 314 Or. at 356, 839 P.2d 217. The petitioner asserted that he was entitled to file after the limitations period because the trial court had not advised him of a possible statutory defense to the charge and "he did not learn of the defense within 120 days after his conviction became final." Id. at 357, 839 P.2d 217. The petitioner urged that, without his attorney's advice as to the statutory defense, he could not reasonably have known of it within the 120 day statutory period and, thus, he was entitled to the benefit of the statutory "escape clause." Id.

The Supreme Court disagreed. After examining the statute's text and its legislative history, the court concluded that the exception for filing a late petition is to be narrowly construed and limited to "extraordinary circumstances." Id. at 358-59, 839 P.2d 217. With respect to the petitioner's claim in Bartz, the court concluded that it did not rise to that level, reasoning:

"Given the specific nature of Bartz's claim, the issue becomes whether the extant statutes pertaining to a particular criminal offense constitute information that is reasonably available to a defendant convicted of that offense. It is a basic assumption of the legal system that the ordinary means by which the legislature publishes and makes available its enactments are sufficient to inform persons of statutes that are relevant to them.* * * Accordingly, we hold that the relevant statutes were reasonably available to Bartz when his conviction became final. The failure of Bartz's counsel to advise him of all available statutory defenses thus is not a `ground[] for relief * * * which could not reasonably have been raised' timely."

314 Or. at 359-60, 839 P.2d 217 (emphasis added; citation omitted).

Relying on the analysis in Bartz, we reached the same conclusion in Brown v. Baldwin, 131 Or.App. 356, 361, 885 P.2d 707 (1994), rev. den. 320 Or. 507, 888 P.2d 568 (1995). There, the petitioner claimed that he could not reasonably have raised his post-conviction claim within the statute of limitations because his attorney had affirmatively advised him that he should wait until he had served about 36 months of his sentence before seeking post-conviction relief. In rejecting his argument that he could avail himself of the "escape clause," we refused to distinguish between an attorney's passive failure to inform a defendant of particular legal information and an attorney's active misrepresentation concerning the law:

"We recognize that counsel's alleged active misrepresentation in this case differed from the passive failure to inform in Bartz. That fact, however, is irrelevant to the Bartz analysis. Bartz makes it clear that the applicability of the escape clause turns on whether the information existed or was reasonably available to the petitioner, and not on whether the petitioner's failure to seek the information was reasonable."

Brown, 131 Or.App. at 361, 885 P.2d 707 (emphasis in original).

Under Bartz and Brown, petitioner's claim does not fall within the exception to the statute of limitations period applicable to post-conviction petitions. Petitioner's complaint here is that her attorney failed to adequately inform her of the likely effects of the immigration laws in effect at the time of her conviction. If the petitioner in Bartz was presumed to know the law based on the public nature of legislative enactments, so must petitioner in this case be presumed to have had knowledge of the relevant immigration statutes and rules. As we said in Brown, the exception under ORS 138.510(2) (1991) depends on whether the information existed or was reasonably available to petitioner to discover her attorney's alleged inadequate advice, not on whether petitioner reasonably was unaware of it. Here, the immigration laws and rules were available, even if petitioner chose not to determine what they actually were. Petitioner's claim here does not differ meaningfully from the petitioner's claim in Bartz. As in Bartz, the petition is time barred. See also Long v. Armenakis, 166 Or.App. 94, 103, 999 P.2d 461, rev. den. 330 Or. 361, 6 P.3d 1102 (2000) (exception to statute of limitations does not apply to a person who forgoes legal representation or advice and remains, by his own choice, ignorant of possible grounds for seeking post-conviction relief).

On appeal, as below, petitioner's only real response to that analysis is to assert that the statute of limitations in ORS 138.510 does not begin to run until a petitioner discovers his or her "injury" due to her attorney's allegedly inadequate advice. If petitioner were correct in that regard, and if she were further correct that the applicable limitation period was two years, rather than 120 days, then petitioner's...