Frost v. State
| Decision Date | 13 July 2022 |
| Docket Number | A173895 (Control), A173892, A173894 |
| Citation | 320 Or.App. 753,514 P.3d 1182 |
| Parties | Curtis FROST, Jr., Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Jason Weber argued the cause for appellant. Also on the brief was O'Connor Weber LLC.
Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.
In this consolidated appeal, petitioner challenges three judgments denying him post-conviction relief (PCR). On appeal, petitioner argues that the post-conviction court erred by conducting a certain hearing without his appearance as required by statute. For the following reasons, we conclude that a petitioner is generally required by statute to be present during a hearing such as the one at issue in the consolidated cases, the error in not having petitioner present at the hearing was plain, and that we will exercise our discretion to correct the error. We reverse and remand.
The facts as they relate to the disposition of this appeal are procedural and are not in dispute. After pleading guilty to a number of crimes in three separate criminal cases, defendant filed these post-conviction actions, claiming that he received inadequate assistance of counsel. In November 2019, at a status conference ahead of the post-conviction hearing set for the following January, the court asked petitioner's counsel whether "this will be a case regarding stipulated documents being presented to the Court or are you going to anticipate actual live testimony?"1 Counsel's response was partially indiscernible and then focused on whether the correctional facility where petitioner was then incarcerated had the ability to have petitioner appear by telephone or video. Petitioner's attorney filed a motion just before the hearing and requested permission to appear by telephone because "counsel's office is located more than 43 miles from the [post-conviction court] and counsel anticipates that this matter will take no longer than 30 minutes." The court granted that motion.
The hearing proceeded a few days later and petitioner was not present. The court specifically confirmed with petitioner's counsel that "all we're doing today is legal argument?" Counsel responded, "That's correct, Your Honor." The hearing itself consisted of both petitioner's counsel and the state entering a number of exhibits, including declarations of petitioner and petitioner's trial attorney, as well as the charging instruments, plea petitions, judgments, probation violation reports, and transcripts from the three underlying criminal cases. There were no witnesses examined, and each side submitted the case to the court on the legal arguments provided in their hearing memoranda.
The court denied relief in each PCR case and this appeal followed. On appeal, petitioner argues that the court was required by ORS 138.620(1) to "order that petitioner be present" for the hearing. Moreover, petitioner argues that, although "it is impossible to know exactly how petitioner's presence at the hearing could have impacted the outcome *** there are several plausible ways his personal presence could likely have impacted the outcome."
In response, the state contends that petitioner failed to preserve his claim for appellate review and that any error the post-conviction court may have committed by failing to have petitioner present at the hearing was not plain. In arguing against exercise of discretion to correct any plain error, the state claims that petitioner "misstates the law in suggesting that the [state] bears ‘the burden to show that the error was harmless on this record.’ " While we would normally address preservation first, because of the contours of the statutory analysis and how they play into the particulars of the preservation issues in this case, we will instead discuss the meaning of ORS 138.620(1) before preservation.
We generally review a trial court's control of the proceedings within an action, including post-conviction review, for abuse of discretion. Sanchez v. State of Oregon , 272 Or. App. 226, 228, 355 P.3d 172, rev. den. , 358 Or. 449, 366 P.3d 719 (2015). When a court's procedural choices violate a petitioner's statutory or constitutional rights, such choices constitute an abuse of discretion. Id. at 238-39, 355 P.3d 172. As framed by the parties in this appeal, we must determine whether ORS 138.620 requires that a PCR petitioner be personally present at the hearing. The question in this case reduces to a question of statutory construction, and therefore, one of law.
Under the Gaines framework for determining the legislative intent of a statute, we begin with the text and context of the statute, and to the extent we deem it useful, the legislative history underpinning an enactment. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). If the legislature's intent is still unclear after our examination of the text, context, and legislative history, we may resort to general maxims of statutory construction to resolve any remaining uncertainty. Id. at 172, 206 P.3d 1042. "In construing a statute, [a] court is responsible for identifying the correct interpretation, whether or not asserted by the parties." Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997).
The statutory provision at issue in this appeal, ORS 138.620(1), provides:
A few points from that provision are immediately apparent. First, the court must generally hold a hearing on the issues raised by a petitioner. See Snyder v. Amsberry , 306 Or. App. 439, 446, 474 P.3d 417 (2020) (). As we noted from the "mandatory nature of ORS 138.620," the subject of that mandate is the court. Id. It follows then that the legislature, in adopting ORS 138.620, intended to direct the court to do certain things. The third sentence of ORS 138.620(1) —"At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present"—places a similar mandate on the court.
The second point apparent from the text is an exception to the general rule requiring a petitioner's personal presence at the hearing. The second sentence of ORS 138.620(1) provides that, upon a certain set of conditions—"response by demurrer or a motion raising solely issues of law" and "as long as petitioner is represented at the hearing by counsel"—the court "need not order that [a] petitioner be present." As the general rule mandates that the court hold a hearing and order a petitioner's presence, it is logical that the court make the required determination for the exception to apply. Thus, the court must determine whether a defendant's response "is by demurrer or motion raising solely issues of law," and "whether petitioner [will be] represented at the hearing by counsel." Absent a determination that both conditions are true, the "court shall order that [a] petitioner be present."
The contextual setting for ORS 138.620 includes prior judicial opinions interpreting a statutory provision. State v. Lam , 176 Or. App. 149, 154, 29 P.3d 1206 (2001). In two previous cases we have interpreted the petitioner presence requirement of ORS 138.620 and have concluded that the statute places a duty on the post-conviction court to order that a petitioner be present when the exceptions are not met. We reversed a dismissal without prejudice when the petitioner "took reasonable steps to [e]nsure his presence for trial," but could not appear because federal immigration authorities refused to honor the transportation order for the petitioner to appear. Dinh v. Zenon , 143 Or. App. 444, 449, 923 P.2d 1287 (1996). In an earlier case, we concluded that
Smith v. State of Oregon , 78 Or. App. 485, 488, 717 P.2d 240 (1986).2 Those cases, taken together, support our understanding of the text of the statute.
Armed with the plain meaning of ORS 138.620(1), we turn to preservation. Petitioner does not dispute that the error was not preserved; rather, petitioner argues that this is not the type of error that requires preservation because he did not have the opportunity to object because he was not present. On two separate occasions reflected in the record, petitioner's counsel discussed with the court whether petitioner would be present. Critically, at the hearing, the court confirmed with petitioner's counsel that the hearing would involve only legal argument. No one objected to proceeding without petitioner present, and therefore the court was not alerted to the potentially erroneous interpretation of ORS 138.620. Nor for that matter was ORS 138.620 ever raised before the court. In Snyder , we held that the court erred by dismissing a petition with prejudice without holding a hearing, which provided the petitioner " ‘no practical ability to raise [the] issue.’ " 306 Or. App. at 446, 474 P.3d 417 (quoting Peeples v. Lampert , 345 Or. 209, 220, 191...
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