Bowen v. Johnson
| Decision Date | 08 March 2000 |
| Citation | 999 P.2d 1159,166 Or. App. 89 |
| Parties | John Robert BOWEN, Respondent, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Appellant. |
| Court | Oregon Court of Appeals |
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Bob Pangburn argued the cause and filed the brief for respondent.
Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.
The state appeals a judgment granting post-conviction relief based on the inadequacy of counsel at petitioner's criminal trial. The state contends that the post-conviction court granted relief based on a claim not raised in the petition. We agree and reverse.
The relevant facts are not in dispute. Petitioner was convicted of two counts of first-degree sodomy. Petitioner appealed, and the conviction was affirmed without opinion. State v. Bowen, 142 Or.App. 313, 920 P.2d 180, rev. den. 324 Or. 395, 927 P.2d 600 (1996). Petitioner then filed a pro se petition for post-conviction relief. He alleged numerous errors by the trial court at his criminal trial, including that the trial court incorrectly instructed the jury concerning the state's burden of proof. He also alleged that he had been deprived of effective assistance of counsel in several ways. Not mentioned, however, was the failure of criminal trial counsel to object to the trial court's jury instructions.
Petitioner later obtained court-appointed counsel, who filed an amended, "formal" petition for post-conviction relief. In the amended petition, too, petitioner alleges numerous trial court errors, including the improper instruction of the jury. Specifically, he alleges that the trial court's instructions were confusing as to the dates of the alleged criminal acts. And he reiterates his allegations of ineffective assistance of counsel, again not mentioning anything about counsel's failure to object to the erroneous instructions.
At trial before the post-conviction court, the state argued that the allegations concerning trial court error—in particular, the allegations concerning the jury instructions—were not cognizable under Palmer v. State, 318 Or. 352, 354, 867 P.2d 1368 (1994), because the claims could have been raised in the criminal trial and on direct appeal. The post-conviction court held that the trial court's instructions were ambiguous as to the dates of the alleged criminal acts and observed that, at one juncture, the trial court held that the elements of the crimes charged must be proven "within" a reasonable doubt, instead of "beyond" a reasonable doubt. The post-conviction court acknowledged the state's contention that the errors were not cognizable under Palmer and further acknowledged that petitioner had raised no ineffective assistance of counsel claim as to the erroneous jury instructions. The court nevertheless granted post-conviction relief on the basis of the ineffectiveness of counsel at trial and on appeal, because "these errors are so fundamental to [petitioner's] constitutional rights that justice demands that they be corrected."
On appeal, the state argues that the post-conviction court erred in granting relief on a claim not asserted in the post-conviction petition. Petitioner concedes that he did not raise an ineffective assistance of counsel claim as to the erroneous jury instructions, but argues that, because of the importance of the constitutional rights involved, the post-conviction court had the discretion to grant relief even on a claim not pleaded.
ORS 138.510 et seq., often referred to as the Post-Conviction Hearing Act, provides a collateral civil remedy to a convicted criminal defendant. Post-conviction proceedings are initiated by the filing of a petition, which must "set forth specifically the grounds upon which relief is claimed." ORS 138.580. It is the obligation of the petitioner "to select the issues that he wants to litigate" in a post-conviction proceeding. Temple v. Zenon, 124 Or.App. 388, 392, 862 P.2d 585 (1993). All grounds for post-conviction relief must be stated in the petition or in an amended petition, and "any grounds not so asserted are deemed waived" unless the post-conviction court, on hearing a later petition, finds that there are grounds for...
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