Gonzalez-Aguilera v. Premo
| Decision Date | 21 October 2015 |
| Docket Number | A151093.,10C16814 |
| Parties | Christopher GONZALEZ–AGUILERA, Petitioner–Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
Rankin Johnson, IV, argued the cause for appellant. On the opening brief were Erin Galli and Galli Law Office, LLC. C. Michael Gonzalez–Aguilera filed the supplemental brief pro se.
Jona Jolyne Maukonen, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General.
Petitioner appeals a judgment dismissing his petition for post-conviction relief. In the petition, he raised two claims of ineffective assistance of counsel, alleging that his trial attorney failed to adequately investigate his mental health circumstances at the time of his offense and at the time he entered guilty pleas. The post-conviction court dismissed the petition, in its entirety, for failure to prosecute, ORCP 54 (B)(1). Petitioner argues that the post-conviction court plainly erred in doing so. As explained below, even assuming that the court plainly erred, we decline to exercise our discretion to correct any error. We, therefore, affirm the judgment. Petitioner also assigns error to the post-conviction court's ruling that petitioner failed to comply with the attachment requirements of ORS 138.580. But, because we affirm the dismissal of the petition for failure to prosecute, we need not consider that alternative ground for dismissal.1
We review the post-conviction court's legal conclusions for errors of law and are bound by its findings of fact, if they are supported by any evidence in the record. Hale v. Belleque,255 Or.App. 653, 660, 298 P.3d 596, adh'd to on recons.,258 Or.App. 587, 312 P.3d 533, rev. den.,354 Or. 597, 318 P.3d 749 (2013).
The following facts are undisputed. Petitioner pleaded guilty to two counts of assaulting a public safety officer, ORS 163.208. The trial court sentenced petitioner to two consecutive 30–month prison terms. Petitioner sought post-conviction relief, raising two claims of ineffective assistance of counsel. His first claim asserted that his counsel failed to “adequately investigate the facts and circumstances of the incident” for which he was convicted to potentially develop “a legal defense based upon his previous psychiatric history.” His second claim asserted that his trial counsel “encouraged and allowed” petitioner to enter guilty pleas “that were not made knowingly, willingly, or intelligently, due to his then[-]current mental state.” Petitioner included with his petition a signed affidavit.
The state moved to dismiss the petition on the ground that petitioner failed to attach proper documentary evidence of his claims under ORS 138.580(requiring that “[a]ffidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition”). The state argued that, among other things, petitioner had failed to attach “documentation regarding his alleged mental health background, history or previous diagnosis.”2
The post-conviction court held a hearing on petitioner's claims. Petitioner appeared by telephone, while his attorney appeared in person. Shortly after the hearing began, petitioner asked the court to appoint him a new attorney. During discussion of that request, petitioner hung up the telephone while the judge was talking. After that, the court concluded the hearing, allowed petitioner's attorney to withdraw, and appointed a new attorney for petitioner. That attorney filed a written response opposing the state's motion, and a subsequent hearing date was set for the motion.
At the next hearing, petitioner again appeared by telephone and again hung up on the judge. The court then asked the state whether there were grounds to dismiss petitioner's complaint for his failure to cooperate during the proceedings. The state, in addition to its written motion to dismiss, then orally moved for dismissal of petitioner's complaint for failure to prosecute his case pursuant to ORCP 54B(1).3Petitioner's attorney replied that he was not “ready to brief” on that point and added that he did not “know that there is or isn't the authority” for the post-conviction court to dismiss the petition as a sanction. The post-conviction court granted the state's motion, explaining, “I think there is legal authority for [the dismissal]” based on petitioner's “rudeness to the Court, and his desire to disconnect when the Court rules against him after hearing his legal argument.” The post-conviction court then dismissed petitioner's complaint in its entirety for failure to prosecute.
Petitioner moved for reconsideration. In a supporting affidavit, petitioner requested that the post-conviction court “reevaluate Petitioner's actions in light of his mental health history and reconsider its decision accordingly.” Petitioner attached two exhibits that, he stated, would have been offered if the earlier hearing had proceeded. The first exhibit contained petitioner's medical records from May to September 2008, while he was incarcerated, and related primarily to petitioner's physical health and dietary preferences, with some references to petitioner's feelings of anxiety, depression, and insomnia, a mood disorder, and a provider's note that petitioner was “possibly bipolar.” The second exhibit consisted of petitioner's childhood dependency records from 1976 to 1980, with note of a diagnosis of “Schizophrenic Reaction
of Childhood” in 1980.
The state opposed petitioner's motion for reconsideration, arguing that the petition should be dismissed “in its entirety” for failure to prosecute because of petitioner's “rude and disrespectful” behavior and his disinterest in “advanc[ing]” his case. The state also argued that, with regard to the attachment requirements, petitioner's new submission still failed to comply with ORS 138.580because neither exhibit was probative of petitioner's mental health at the time he committed his offense or when he made his plea deal.
The post-conviction court granted reconsideration “regarding petitioner's claim that his trial counsel failed to investigate the underlying facts and circumstances * * * in regards to potential mental health defenses” but denied reconsideration as to the dismissal of the petition for failure to prosecute. Upon examination of petitioner's submitted exhibits, the court concluded, in a letter opinion, that petitioner's attachments were not sufficient because there was “no merit to Petitioner's claim that he had a diagnosed Axis I mental illness that would serve as a legal defense to his criminal charges.” The post-conviction court then issued two orders. The first order stated that the court had granted reconsideration “as to petitioner's claims that his trial counsel failed to investigate the underlying facts and circumstances of petitioner's conviction in regards to potential mental health defenses at the time of the incident/offense.” The first order also granted the state's motion to dismiss the petition for failure to satisfy attachment requirements and denied reconsideration of the court's dismissal of the petition for failure to prosecute. The second order granted the state's motion to dismiss the petition in its entirety for failure to prosecute.
On appeal, petitioner argues that both of the post-conviction court's bases for dismissal were erroneous. In his first assignment of error, he argues that the post-conviction court erred in dismissing his petition for lack of prosecution because petitioner's actions did not constitute a “failure to prosecute” his case and, even if they did, the court failed to consider other, available sanctions that were less severe. In his second assignment of error, he argues that the post-conviction court erred in dismissing his first claim for failure to meet the requirements of ORS 138.580.
As we understand the proceedings in the post-conviction court, the court initially dismissed the entire petition for failure to prosecute. The court then granted petitioner's motion for reconsideration, but, in doing so, the court's order addressed only petitioner's claim that “his trial counsel failed to investigate the underlying facts and circumstances of petitioner's conviction in regards to potential mental health defenses at the time of the incident/offense[,]” i.e.,his first claim. The order made no mention of petitioner's second claim for relief, regarding the validity of his plea agreement. The post-conviction court adhered to its ruling dismissing the entire petition for failure to prosecute; as a result of its reconsideration, the court then, in effect, dismissed petitioner's first claim on a second, alternate ground—that petitioner had failed to satisfy the attachment requirement of ORS 138.580. Because the post-conviction court did not grant reconsideration as to petitioner's second claim for relief, the only basis on which the court dismissed that claim was for failure to prosecute.
Because the post-conviction court dismissed both of petitioner's claims for relief on the basis that he failed to prosecute those claims, and we affirm on that basis, we address only petitioner's first assignment of error and need not consider the post-conviction court's alternative basis for dismissing the first claim. Petitioner concedes that he did not preserve his argument that the post-conviction court erred in dismissing his petition for lack of prosecution. Nonetheless, he contends that he should be excused from the preservation requirement because “he had no reasonable opportunity to respond to the state's motion.” We disagree.
It is true that, “[i]n some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an issue.” Peeples v. Lampert,345 Or. 209, 220, 191 P.3d...
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Gonzalez-Aguilera v. Nooth
...to the Court, and his desire to disconnect when the Court rules against him after hearing hislegal argument."1 Gonzalez-Aguilera v. Premo, 274 Or. App. 484, 487 (2015). Upon reconsideration, the PCR court adhered to its decision, and petitioner appealed. Id at 489. In a written opinion, the......