Harrison v. Hall

• Decision Date: 04 April 2007
• Docket Number: CV041441.,A129498.
• Citation: 211 Or. App. 697,156 P.3d 141
• Parties: Scott Arthur HARRISON, Petitioner-Appellant, v. Guy HALL, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

156 P.3d 141

211 Or. App. 697

Scott Arthur HARRISON, Petitioner-Appellant, v. Guy HALL, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

CV041441.

A129498.

Court of Appeals of Oregon.

Argued and Submitted November 6, 2006.

Decided April 4, 2007.

James N. Varner filed the brief for appellant.

Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney

General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and WOLLHEIM, Judge.

WOLLHEIM, J.

Petitioner appeals a general judgment dismissing his petition for post-conviction relief under ORS 138.510 to 138.680 after the trial court granted the state's motion for summary judgment. We conclude that petitioner did not preserve the issue he raises on appeal and affirm.

Petitioner was convicted of one count of unlawful sexual penetration in the first degree, ORS 163.411, and one count of sexual abuse in the first degree, ORS 163.427. Petitioner appealed his convictions, and we affirmed. State v. Harrison, 189 Or.App. 89, 74 P.3d 113 (2003), rev. den., 336 Or. 376, 84 P.3d 1080 (2004).

Following the judgment issued on his direct appeal, petitioner filed a pro se petition for post-conviction relief. The day after he filed his petition, the trial court appointed counsel to represent petitioner in his post-conviction case. Petitioner's counsel prepared and filed petitioner's first amended petition; however, counsel did not attach any accompanying affidavit, declaration, or trial transcript supporting the petition. In response, defendant moved to dismiss the petition as meritless under ORS 138.525 and moved to dismiss and strike under ORCP 21 A(8) and ORCP 21 E, alleging failure to state a claim and failure to attach "[a]ffidavits, records or other documentary evidence supporting the allegations of the petition[.]" ORS 138.580. Despite petitioner's opposition to the motion, the trial court struck the first amended petition for failure to comply with ORS 138.580, and allowed petitioner 30 days to gather and attach "affidavits, records or other documentary evidence" in support of his claims and to refile his petition.

Petitioner subsequently filed a second amended petition and accompanying affidavit. The state answered the second amended petition and moved for summary judgment under ORCP 47 B, asserting that there were no genuine issues of material fact and that it was entitled to prevail as a matter of law. According to the state, petitioner's second amended post-conviction petition and affidavit failed to state a prima facie case under ORS 138.580¹ and petitioner effectively waived his right to counsel under the Sixth Amendment to the United States Constitution.

Petitioner did not respond to the state's motion for summary judgment. The trial court granted the state's motion for summary judgment and dismissed petitioner's post-conviction relief petition, concluding that petitioner's affidavit did not meet the requirements of ORS 138.580.

On appeal, petitioner assigns as error the trial court's dismissal of his claims because, he asserts, that decision improperly denied him the opportunity to prove the allegations in the petition. Petitioner also asserts that his affidavit adequately alleged facts under ORS 138.580 to present claims for inadequate assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 11, of the Oregon Constitution.² In response the state argues that ORS 138.580 required petitioner to attach admissible affidavits, records, or other evidence to substantiate his post-conviction relief claims. Additionally, the state reasons that petitioner's affidavit cannot satisfy that requirement by listing "unsupported opinions, speculation, and generalized complaints" that do not support allegations of inadequate assistance of counsel or any prejudice that petitioner suffered as a result of the performance of his pretrial counsel and legal advisor.

We must first determine whether petitioner's arguments were preserved. An issue must be preserved at trial before we will consider it on appeal, ORAP 5.45(4), and we have an "independent obligation to determine whether an argument advanced on appeal was preserved at trial." Vokoun v. City of Lake Oswego, 189 Or.App. 499, 508, 76 P.3d 677 (2003), rev. den., 336 Or. 406, 84 P.3d 1082 (2004) (citing State v. Wyatt, 331 Or. 335, 344-46, 15 P.3d 22 (2000)). This obligation must be satisfied even when a failure to preserve an argument has not been asserted by the opposing party. Wyatt, 331 Or. at 346-47, 15 P.3d 22. Here, both parties assert that petitioner's arguments and issues were preserved; however, for the reasons discussed below, we disagree.

The procedural facts of this case are similar to the procedural facts in Hoffer v. State of Oregon, 136 Or.App. 375, 902 P.2d 127 (1995), rev. den., 322 Or. 489, 909 P.2d 161 (1996). In Hoffer, the petitioner filed for post-conviction relief from his conviction based on a plea and sentencing agreement that "waive[d] any right to file a petition for post-conviction relief alleging any irregularities or incompetency of counsel or anything of that nature." 136 Or.App. at 377, 902 P.2d 127. In his petition, the petitioner asserted violation of his constitutional rights as a result of prosecutorial misconduct and ineffective assistance of trial counsel. The state filed an answer and moved for summary judgment, supported by affidavits and trial transcripts, arguing that the petitioner's claim should be dismissed, based in part on his plea and sentencing agreement to waive his right to seek post-conviction relief. No response was made by the petitioner and, almost two months later, the trial court granted summary judgment for the state. Id. at 378, 902 P.2d 127. The petitioner filed a late response five days after the motion for summary judgment was granted. The trial court did not consider that response in the judgment.

We affirmed the trial court's grant of summary judgment and summarized the petitioner's procedural obligation to preserve his issue for appeal:

"Petitioner failed to timely respond to the motion for summary judgment. Although he may not have any dispute with the facts established by the state's affidavit, he nevertheless had an obligation to present argument to the court regarding why the state's motion should not be granted. By failing to respond to the motion * * * petitioner failed to preserve for appellate review any argument or issue concerning the validity of his agreement to waive his right to seek post-conviction relief. * * * Because petitioner...