Hendricks v. Hill, 04-05-3661M.
| Decision Date | 13 December 2006 |
| Docket Number | A128814.,04-05-3661M. |
| Citation | 149 P.3d 318,209 Or. App. 812 |
| Parties | Henry Boyd HENDRICKS, Respondent, v. Jean HILL, Superintendent, Snake River Correctional Institution, Appellant. |
| Court | Oregon Court of Appeals |
Ryan Kahn, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Erin G. Rohr argued the cause for respondent. With her on the brief was Chilton, Ebbett & Rohr, LLC.
Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.
Petitioner filed an amended petition for post-conviction relief pursuant to ORS 138.510 to 138.680, alleging that his attorney at trial in the underlying case provided inadequate assistance in six respects. Five of those allegations revolved around trial counsel's advice about the consequences of a guilty plea, and one dealt with trial counsel's pretrial investigation. The post-conviction court granted petitioner's petition on a different ground, that is, that trial counsel had failed to tell petitioner about a prearraignment plea offer; petitioner argued that he would have taken the offer if he had known about it, and he was prejudiced by not doing so. The state appeals, contending that ORS 138.550(3) precluded the post-conviction court from granting the petition on a ground not asserted by petitioner in his original or amended petition.
ORS 138.550(3) provides, in part:
"All grounds for relief claimed by petitioner in a petition pursuant to [the post-conviction statutes] must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition."
In Bowen v. Johnson, 166 Or.App. 89, 999 P.2d 1159, rev. den., 330 Or. 553, 10 P.3d 943 (2000), we confirmed that, as the state argues, ORS 138.550(3) prevents the post-conviction court from granting relief on a ground that the petitioner did not include in his or her petition for relief. Accord Makinson v. Lampert, 199 Or.App. 418, 420-21, 112 P.3d 365, rev. den., 339 Or. 230, 119 P.3d 790 (2005).
Petitioner concedes that the post-conviction court granted relief on a ground not raised in the petition, contrary to ORS 138.550(3). He argues, however, that, because two weeks elapsed between the time the judgment was signed and the time it was entered, the state had ample time to alert the post-conviction court to its error. Therefore, he concludes, the state can be held responsible for not preserving its claim of error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991). The state responds that no rule of civil procedure authorizes preservation of a claim of error in situations such as this one where no opportunity to do so arose before the judgment was rendered. See State v. DeCamp, 158 Or.App....
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Leyva-Grave-De-Peralta v. Blacketter
...we refused to address that argument, because it was not pleaded in the petition for post-conviction relief. See also Hendricks v. Hill, 209 Or.App. 812, 149 P.3d 318 (2006) (in state's appeal, addressing as plain error a post-conviction court's grant of post-conviction relief on a ground no......
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Boyles v. Myrick, A154887
...precludes post-conviction relief on the ground that trial counsel was inadequate and ineffective on that basis. Hendricks v. Hill , 209 Or.App. 812, 813, 149 P.3d 318 (2006) (a post-conviction court cannot grant relief on a claim not alleged in the petition); Bowen v. Johnson , 166 Or.App. ......