Hunter v. State

• Decision Date: 26 June 1987
• Parties: Vance Eugene HUNTER, Appellant, v. STATE of Oregon and City of Bend, Respondents. Walter Edward WOLDEN, Appellant, v. STATE of Oregon and City of Bend, Respondents. 38367; 38667; CA A37983 (Control); A37984.
• Court: Oregon Court of Appeals

Page 1225

735 P.2d 1225

84 Or.App. 698

Vance Eugene HUNTER, Appellant, v. STATE of Oregon and City of Bend, Respondents.

Walter Edward WOLDEN, Appellant, v. STATE of Oregon and City of Bend, Respondents.

38367; 38667; CA A37983 (Control); A37984.

Court of Appeals of Oregon.

Argued and Submitted Nov. 20, 1986.

Decided April 15, 1987.

Reconsideration Denied June 26, 1987.

Brian J. MacRitchie, Bend, argued the cause for appellants. With him on the brief was MacRitchie & Lewis, Bend.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Petitioner ¹ pled guilty to and was convicted of driving under the influence of intoxicants in violation of a city ordinance which, pursuant to former ORS 487.015, ² proscribed exactly the same conduct and provided the same penalties as the state DUII statute, former ORS 487.540. He petitioned for post-conviction relief, alleging that he had entered his guilty plea without having been advised of certain constitutional and statutory rights. The petition was denied, and petitioner appeals.

Petitioner contends that ORS 138.510(1) is unconstitutional under Article I, section 20, of the Oregon Constitution, and the Equal Protection clause of the Fourteenth Amendment, because it allows post-conviction remedies to persons convicted of violating the state DUII statute but denies those remedies to persons who, although guilty of the same conduct, are convicted under a municipal ordinance. We address the state constitutional question first. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

Petitioner acknowledges that there is no constitutionally protected right to appeal from a criminal conviction and that a state is not constitutionally required to provide a means for post-conviction review. See, e.g., Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972); Williams v. State of Mo., 640 F.2d 140 (8th Cir), cert. den, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981); State v. Endsley, 214 Or. 537, 539, 331 P.2d 338 (1958). He argues, however, that, when the legislature grants a "privilege" to some, Article I, section 20, ³ requires that the privilege be available "upon the same terms" to any citizen or class of citizens. State v. Clark, 291 Or. 231, 237, 630 P.2d 810, cert. den 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981).

ORS 138.510(1) provides:

"Except as otherwise provided in ORS 138.540, any person convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 to 138.680."

The initial question is whether the statute, by its terms, allows those convicted under a municipal ordinance to petition for post-conviction relief. We have repeatedly held that the language "the laws of this state" does not include city ordinances and that, therefore, post-conviction relief is unavailable to persons convicted of violations of city ordinances. LaMarche v. State of Oregon, 81 Or.App. 216, 725 P.2d 378, rev. den. 302 Or. 299, 728 P.2d 531 (1986); Skaggs v. State of Oregon, 69 Or.App. 337, 684 P.2d 1256, rev. den. 298 Or. 150, 690 P.2d 506 (1984); Rutherford v. City of Klamath Falls, 19 Or.App. 103, 526 P.2d 645 (1974).

If post-conviction relief is available only when a conviction is under a state law, a person convicted of violating a municipal ordinance is left without any type of post-conviction remedy. ⁴ Thus, the state has granted to persons convicted of a state-defined crime a privilege that is completely denied to persons convicted of the same offense under a municipal ordinance. Because that unequal treatment is afforded to persons who are similarly situated, i.e., who have engaged in conduct that violates both a state statute and a substantively identical ordinance, we must determine whether such disparate treatment is constitutionally allowable.

Under Article I, section 20, we balance the interest impinged upon against the state's justification for the difference in treatment. Olsen v. State ex rel. Johnson, 276 Or. 9, 554 P.2d 139 (1976). ⁵ Here, the interest is great, because post- conviction relief is the only means by which a non-incarcerated person convicted of a crime can vindicate constitutional rights when appeal is either not available or has been exhausted. ⁶ The state's brief offers various justifications for denying post-conviction relief to municipal ordinance violators when it is granted to state law violators. It argues that the deprivation is justified because the municipal courts are not courts of record and, because post-conviction petitions may be filed without limit as to time, the municipality is "virtually powerless to defend them." Therefore, the state argues, the legislature decided not to require municipal courts to keep "detailed and voluminous" records and not to apply post-conviction proceedings to those courts' convictions. That justification is without support. Post-conviction relief may be had when a conviction in municipal court is based on the violation of a state statute, even though no record has been made. Moreover, post-conviction relief is presently not available to persons convicted of municipal ordinance violations in district court, even though a record has been made. ⁷

The state also argues that denial of a post-conviction remedy is justified because of the appeal rights that exist for municipal court convictions. However, the availability of and procedure for a direct appeal has no bearing on whether or not post-conviction relief should be granted. The state's final justification, that the post-conviction scheme is intended to spread the costs and burdens of appeals evenly and to reduce burdens on cities and this appellate court similarly fails. ⁸ Accordingly, we hold that the interest in the availability of a procedure by which to vindicate constitutional violations outweighs any state justification for the deprivation of that interest.

If we were to follow our previous interpretation, ORS 138.510(1) would violate Oregon's Privileges and Immunities Clause. When, however, we can interpret a statute in a manner that avoids constitutional problems, we should do so. Easton v. Hurita, 290 Or. 689, 625 P.2d 1290 (1981). Accordingly, we hold that the language in ORS 138.510(1), "the laws of this state," includes convictions for violations of municipal ordinances when, as here, an ordinance is required by statute to be essentially the same as a state statute which prohibits the same conduct and provides the same penalties. To the extent that Rutherford v. City of Klamath Falls, supra, Skaggs v. State of Oregon, supra, and LaMarche v. State of Oregon, supra, are inconsistent with this holding, they are overruled. Petitioner is entitled to pursue a post-conviction claim; therefore, dismissal of his post-conviction petition was error.

Judgment in each case reversed and remanded.

1 There are two petitioners in this consolidated case. Because they raise identical issues, we will refer to them in the singular.

2 Former ORS 487.015 provided:

"The provisions of this chapter and ORS chapter 483 shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and on the ocean shore which has been or may hereafter be declared a state recreation area, and no local authority may enact or enforce any rule or regulation in conflict with the provisions of this chapter and ORS chapter 483 except as specifically authorized in this chapter and ORS chapter 483."

3 Article I, section 20 provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all...