Hardin v. Popoff

• Decision Date: 29 June 2016
• Docket Number: A151853
• Citation: 279 Or.App. 290,379 P.3d 593
• Parties: Travis John Hardin, Petitioner–Appellant, v. Christine Popoff, Superintendent, Columbia River Correctional Institution, Defendant–Respondent.
• Court: Oregon Court of Appeals

279 Or.App. 290

379 P.3d 593

Travis John Hardin, Petitioner–Appellant,

v.Christine Popoff, Superintendent, Columbia River Correctional Institution, Defendant–Respondent.

A151853

Court of Appeals of Oregon.

Submitted December 8, 2014.

June 29, 2016

Jason L. Weber filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Egan, Judge, and DeHoog, Judge.

DEHOOG

, J.

Petitioner appeals the dismissal of his petition for post-conviction relief filed pursuant to ORS 138.510

. He assigns error to the post-conviction court's conclusion that his petition was time barred under ORS 138.510(3), which presumptively requires a petitioner to file for relief within two years after entry of judgment. Petitioner argues that his claim falls within an exception to that statute of limitations, which allows him to assert “grounds for relief * * * which could not reasonably have been raised” within the time allowed. See ORS 138.510(3). The state contends that petitioner could reasonably have raised his claim within that time and that the court, therefore, properly dismissed his petition. For the reasons that follow, we agree that petitioner's claim is untimely and, accordingly, affirm.

The relevant facts are procedural and undisputed. Petitioner pleaded guilty to four counts of encouraging child sexual abuse in violation of ORS 163.686 (2007)

, amended by Or. Laws 2011, ch. 515, § 4,¹ based on allegations that he had “possess[ed]” or “control[led]” images of child pornography. The trial court entered the resulting judgment of conviction in April 2007. Petitioner's charges arose when the police conducted a forensic search of his computer that revealed images of child pornography located on the unallocated space of the computer's hard drive.² Those images saved automatically to the hard drive when petitioner searched for them on the internet and viewed them on his computer; petitioner did not download the images or know that his computer was storing copies of them each time that he viewed them.

Petitioner did not appeal his convictions, nor did he file for post-conviction relief within two years after the April 2007 entry of judgment. See ORS 138.510(3)

(time period to file petition for post-conviction relief).

In May 2009, we decided State v. Ritchie , 228 Or.App. 412, 208 P.3d 981 (2009)

(Ritchie I ), rev'd , 349 Or. 572, 248 P.3d 405 (2011) (Ritchie II ). In that case, we held that a person possesses or controls an image within the meaning of ORS 163.686(1) “when a person discovers the presence of that recording on the Internet and causes that recording to appear on a specific computer monitor.” Id. at 419, 208 P.3d 981. We rejected the defendant's argument that a person does not possess or control an image by merely viewing that image on a computer screen. Id. at 418–20, 208 P.3d 981. We rejected a similar argument without opinion in State v. Barger , 233 Or.App. 621, 226 P.3d 718 (2010)

(Barger I ), rev'd , 349 Or. 553, 247 P.3d 309 (2011) (Barger II ).

In January 2011, the Supreme Court reversed our decisions in Ritchie I

and Barger I, and held that merely viewing an image of child pornography on a computer screen did not constitute encouraging child sexual abuse under ORS 163.686(1). Barger II , 349 Or. at 567, 247 P.3d 309 ; Ritchie II , 349 Or. at 582–83, 248 P.3d 405. Specifically, in Barger II, the court held that, under the version of the statute then in effect, accessing and viewing images of child pornography on the internet, without more, was insufficient to establish possession or control of those images, even if the viewer's computer automatically saved temporary copies of them. 349 Or. at 556–67, 247 P.3d 309. Similarly, in Ritchie II, the court concluded that, under the facts of that case, images of child pornography located on the unallocated portion of the defendant's hard drive could not subject the defendant to criminal liability for possession or control when there was no proof that the defendant had done anything more than view those images. 349 Or. at 584–85, 248 P.3d 405.

In October 2011, petitioner filed a petition for post-conviction relief that asserted a violation of his due process rights under the Fourteenth Amendment to the United States Constitution. His petition claimed that he had not voluntarily and intelligently entered his guilty pleas, because, under the substantive law newly announced in Ritchie II

and Barger II, he was factually innocent.

The state moved to dismiss the petition as untimely based on ORS 138.510(3)

, which provides, in part:

“A petition pursuant to ORS 138.510

to 138.680 [the Post–Conviction Hearing Act] must be filed within two years 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:

“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.”

Petitioner argued to the post-conviction court that his claim could not reasonably have been raised within the two-year limitations period and that it therefore fell within the “escape clause” of ORS 138.510(3)

. See

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) (describing statutory exception to time limit as an “escape clause”). Specifically, petitioner asserted that no statutory or decisional law had construed the terms “possess[ion]” or “control [ ]” prior to Ritchie II and Barger II. In his view, because those cases announced new law and did not issue until the two-year limitations period had expired in his case, ORS 138.510(3) did not bar his petition for relief. The state countered that, even though Ritchie II and Barger II announced new law, those cases did not establish “watershed” law. Thus, the state argued, petitioner could reasonably have raised his claims before those decisions issued, and the escape clause did not apply.

In a written order, the post-conviction court concluded that, while the Supreme Court's rulings in Ritchie II

and Barger II were not available to petitioner within the applicable timeframe, he nonetheless could reasonably have anticipated that the issue of what constituted possession or control under ORS 163.686(1) would arise as a question of law. Therefore, he could have raised that issue within the two-year limitations period of ORS 138.510(3). As a result, the court dismissed the petition for post-conviction relief with prejudice.

Petitioner assigns error to that conclusion and largely renews the arguments that he made to the post-conviction court. Petitioner contends that he could not reasonably have raised his claim prior to Ritchie II

and Barger II. In effect, he reasons that, as a lay person, he could not have recognized the technology-based defense announced in Ritchie II and Barger II until the Supreme Court issued those decisions several years after his convictions. He argues that the Supreme Court's newly announced interpretation of ORS 163.686(1) in those cases excuses the late filing of his petition for post-conviction relief, because, in his view, that interpretation was novel and surprising. Petitioner alternatively urges us to equate the escape clause of ORS 138.510(3)

with the standard for ineffective assistance of counsel, such that, if petitioner's attorney was not constitutionally deficient for failing to anticipate and raise the issue in the trial court, then he could not reasonably have been expected to anticipate and raise that same issue in a petition for post-conviction relief.

For its part, the state does not rely on its “watershed” law argument on appeal. Instead, the focus of the state's argument is that the mere fact that no appellate court had conclusively resolved the issue underlying petitioner's claim until May 2009 does not excuse his untimely filing. The state acknowledges that Ritchie II

and Barger II announced new law. The state points out, however, that, during the two years following petitioner's conviction, no decisional law foreclosed petitioner's argument. The state further argues that the claim itself—that petitioner did not possess or control the images automatically stored on his computer—was based on a familiar principle. Thus, the state argues that petitioner was required to timely raise his claim. As additional support for its argument that petitioner reasonably could have raised his claim by April 2009, the state notes that the defendant in Ritchie I raised the precise legal argument that petitioner now asserts, and raised that argument well before petitioner's deadline to file for post-conviction relief.

It is undisputed that petitioner did not file his claim for relief within the two years following entry of judgment in his case. Therefore, the only question in this appeal is whether petitioner could reasonably have raised his claim within the prescribed two-year period. See ORS 138.510(3)

. For the reasons that follow, we conclude that petitioner could, in fact, reasonably have raised his claim within that timeframe and that ORS 138.510(3) therefore bars his petition for relief.

We review the post-conviction court's legal conclusions for legal error. ORS 138.650

; ORS 138.220 (scope of review for post-conviction relief); Cunningham v. Thompson , 186 Or.App. 221, 226, 62 P.3d 823, adh'd to as modified on recons. , 188 Or.App. 289, 71 P.3d 110 (2003), rev. den. , 337 Or. 327, 99 P.3d 290 (2004). Whether an appeal is time barred under ORS 138.510(3) is a question of law. See

Bartz v. State of Oregon , 314 Or. 353, 356–58, 839 P.2d 217 (1992) (applying that standard).

As noted, ORS 138.510(3)

requires a petitioner to file for post-conviction relief within two years of entry of the judgment of conviction, unless the grounds for relief “could not reasonably have been...