Gutale v. State, A155474

• Decision Date: 26 April 2017
• Docket Number: A155474
• Citation: 395 P.3d 942,285 Or.App. 39
• Parties: Abdalla Dahir GUTALE, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
• Court: Oregon Court of Appeals

285 Or.App. 39

395 P.3d 942

Abdalla Dahir GUTALE, Petitioner-Appellant,

v.STATE of Oregon, Defendant-Respondent.

A155474

Court of Appeals of Oregon.

Argued and submitted January 12, 2016.

April 26, 2017

Jason Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Paul L. Smith, Deputy Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

DUNCAN, P. J.

More than two years after entry of his conviction for third-degree sexual abuse, petitioner filed a petition for post-conviction relief alleging that his attorney had been constitutionally inadequate in failing to advise him of the immigration consequences of his plea to that charge. See Padilla v. Kentucky , 559 U.S. 356, 366-67, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (holding that counsel's failure to give correct advice regarding clear deportation consequences of a conviction amounted to ineffective assistance under the Sixth Amendment to the United States Constitution). The post-conviction court dismissed the petition as untimely, ruling that it did not fall within the "escape clause" of ORS 138.510. See ORS 138.510(3)(a) (requiring petitions for post-conviction relief to be filed within two years of the date of conviction unless the asserted grounds for relief "could not reasonably have been raised" in a timely manner).

On appeal, petitioner argues that the court's ruling regarding the escape clause was incorrect, because he could not reasonably have raised his claim of inadequate assistance until he learned, more than two years after his conviction, that he had pleaded guilty to a deportable offense. Petitioner concedes that, in Benitez-Chacon v. State of Oregon , 178 Or.App. 352, 355, 37 P.3d 1035 (2001), rev. den. , 334 Or. 76, 45 P.3d 450 (2002), we held that a petitioner is presumed to know immigration laws and, consequently, a petitioner's subjective lack of awareness of the legal consequences of a plea will not delay the time in which a petition must be filed under ORS 138.510(3). But, according to petitioner, his case is distinguishable from Benitez-Chacon on the facts, because petitioner received no advice regarding immigration consequences whereas the petitioner in Benitez-Chacon was told that she might be deported; alternatively, petitioner argues that we should overrule Benitez-Chacon because, among other things, it is absurd to presume that nonlawyers would understand an area of the law as nuanced and complex as immigration law. See Padilla , 559 U.S. at 369, 130 S.Ct. 1473 ("Immigration law can be complex, and it is a legal specialty of its own."); Cervantes v. Perryman , 954 F.Supp. 1257, 1260 (N.D. Ill. 1997) (describing one provision of the Immigration and Nationality Act as "an example of legislative draftsmanship that would cross the eyes of a Talmudic scholar").

We reject without extended discussion petitioner's attempt to factually distinguish Benitez-Chacon . There is no material difference, for purposes of Benitez-Chacon , between cases in which an attorney gives some immigration advice or none at all. 178 Or.App. at 356, 37 P.3d 1035 (explaining that, in Brown v. Baldwin , 131 Or.App. 356, 361, 885 P.2d 707 (1994), rev. den. , 320 Or. 507, 888 P.2d 568 (1995), "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 also decline petitioner's invitation to overrule Benitez-Chacon . The principle on which Benitez-Chacon is predicated—that persons are assumed to know laws that are publicly available and relevant to them—can yield harsh consequences in cases such as this, essentially putting the burden on a petitioner to investigate the adequacy of counsel's performance. Nonetheless, we were not writing on a clean slate in Benitez-Chacon , nor do we do so now. Benitez-Chacon drew the applicable assumption from the Supreme Court's decision in Bartz v. State of Oregon , 314 Or. 353, 356-60, 839 P.2d 217 (1992), which interpreted ORS 138.510(2) (1991). That statute provided that a petition "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 altered.) Relying on legislative history from 1989, Bartz held that the legislature had intended the exception to late filing to be "construed narrowly." 314 Or. at 359, 839 P.2d 217. Then, considering the petitioner's claim that trial counsel failed to advise him of a possible statutory defense before he pleaded guilty, the court explained:

"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. See Dungey v. Fairview Farms, Inc. , 205 Or. 615, 621, 290 P.2d 181 (1955) (every person is presumed to know the law). 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. ORS 138.510(2). The exception to the 120-day limitation period is not available to Bartz under the circumstances here."

314 Or. at 359-60, 839 P.2d 217. Thus, under Bartz , a post-conviction relief petitioner is presumed to have the knowledge that his or her trial counsel was appointed to provide.¹

Recently, in Verduzco v. State of Oregon , 357 Or. 553, 565, 355 P.3d 902 (2015), the Supreme Court intimated that Bartz might not be the "final answer" on the meaning of ORS 138.510(3). In the course of discussing a similarly worded escape clause in ORS 138.550(3), the court in Verduzco noted that the legislature amended ORS 138.510 in 1993, after Bartz was decided; it further noted that, "[a]lthough the 1993 legislature left the wording of the escape clause unchanged, the legislature discussed the relationship between the escape clause and the expanded limitations period at some length in the course of enacting the 1993 amendments to the statute of limitations."

357 Or. at 564 n. 10, 355 P.3d 902. But, apart from noting that the court "cannot assume that Bartz provides the final answer on the meaning of ORS 138.510(3), as amended in 1993," 357 Or. at 565, 355 P.3d 902.Verduzco provides no further guidance as to the meaning of that statute or the role that Bartz should play in construing it.

Despite the Supreme Court's observations regarding Bartz , we decline petitioner's invitation to overrule Benitez-Chacon . Petitioner has not directed us to any legislative history from 1993 that demonstrates an intention to legislatively overrule the holding in Bartz , or that convinces us that we were plainly wrong in Benitez-Chacon to rely on that prior construction of the escape clause. Thus, petitioner's challenge to the "narrow" construction of ORS 138.510(3) is properly directed to the Supreme Court. See Chavez v. State of Oregon , 283 Or.App. 788, 799, 391 P.3d 801 (2017) ( "[W]e are not in a position to overrule the Supreme Court, nor are we inclined to revisit our own well-considered opinion to the extent that it was based on those earlier Supreme Court cases.").

Accordingly, we adhere to Benitez-Chacon and affirm the post-conviction court's ruling that the grounds for relief asserted in the petition do not fall within the escape clause. The relevant immigration laws (and Padilla , which was decided before petitioner pleaded guilty) were publicly available to petitioner from the start of the limitations period, so his claim of inadequate assistance is not one "which could not reasonably have been raised" for purposes of ORS 138.510(3). Accord Hardin v. Popoff , 279 Or.App. 290, 303, 379 P.3d 593, rev. den. , 360 Or. 465, 384 P.3d 151 (2016) (citing Bartz and Benitez-Chacon and stating that the fact that "publicly available decisional law, much of which predates [the expiration of the...