Knox v. Nooth
| Decision Date | 29 June 2011 |
| Docket Number | 06065214P; A137526. |
| Citation | 260 P.3d 562,244 Or.App. 57 |
| Parties | James Clark KNOX, Petitioner–Appellant,v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Andrew S. Chilton and Chilton & Galli, LLC, filed the brief for appellant. James Clark Knox filed the supplemental brief pro se.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Stacey R.J. Guise, Senior Assistant Attorney General, filed the briefs for respondent.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and WOLLHEIM, Judge.
Petitioner appeals a judgment denying his petition for post-conviction relief, raising five assignments of error. We write to address only one of them, viz., that the trial court erred in granting a motion by petitioner's appointed counsel to withdraw as his counsel and in ordering petitioner to proceed pro se. We agree with petitioner on that assignment and, accordingly, reverse and remand.
Petitioner was convicted of a number of sexual offenses. He filed an appeal from the convictions, and we affirmed them. State v. Knox, 201 Or.App. 733, 122 P.3d 143 (2005), rev. den., 340 Or. 34, 129 P.3d 183, cert. den., 549 U.S. 842, 127 S.Ct. 99, 166 L.Ed.2d 72 (2006).
After the criminal case had concluded, petitioner filed a pro se petition for post-conviction relief and an affidavit under ORS 138.590 seeking to proceed as an indigent person and asking the trial court to appoint counsel for him. The court responded by appointing Mahony as petitioner's counsel. Mahony thereafter filed a formal petition for post-conviction relief on petitioner's behalf, asserting that trial and appellate counsel had provided petitioner with constitutionally deficient representation in his criminal case in a number of respects. After Mahony had filed the formal petition, petitioner filed a motion in accordance with Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), that told the court that Mahony had not included in the formal petition several claims that petitioner had asked Mahony to include. Further, petitioner asked the court to instruct Mahony to add those claims to the petition or to “discharge” Mahony.1
During the hearing on the motion, the following colloquy occurred:
The court proceeded to question Mahony about petitioner's concerns, which led to the following exchange:
“[MAHONY:] * * * Judge, I guess—I guess I feel like I am at a point where I need to withdraw as [petitioner's] attorney because I am hearing one thing when I meet with him and [something] completely different when he is complaining to the Judge.
“ * * * [Petitioner] was deposed on the amended formal petition. At that time, and [defendant] was on the phone, [defendant] had no objection to add [ing] [an] additional issue as far as [an issue applying] the Blakely case * * * to consecutive sentencing.
“As I read the indictment on [the counts in question,] they all say separate acts. * * * Because [the indictment] says separate act[s], I guess my position is that if they are saying it is a separate act, then it is not a carbon copy count. Um, and that is—that is what he is saying now to you is completely different than what was told to me when we had the deposition. I think [petitioner is] just setting me up for bar complaints. I think he is setting me up to file—to do this. [Petitioner] has a history of this. Judge, based on what he has said today, I plan to file a motion to withdraw.
“ * * * * *
“ * * * [Petitioner], the fact that you may have submitted a memorandum does not mean that Mr. Mahony is required to submit that to the court. If he takes a look at it and does not believe that it * * * sets forth any type of proper legal argument, then * * * he is obligated, as an attorney, not to pursue it. His ethical obligation is to only pursue those factual and legal arguments that he believes, in good faith, ha[ve] some legitimate, even if marginal, basis. * * *
“ * * * * *
“ * * * [Y]ou have to understand you are not going to submit every issue that you may think * * * needs to be argued. This is a post-conviction proceeding. It is limited in scope. It is not for rearguing and rehashing everything that happened in your previous trial.
“[PETITIONER:] I understand that, sir, but I am also barred from bringing them in a federal habeas corpus [proceeding] if I do not allege [the] issues that * * * have constitutional merit.”
(Emphasis added.)
Mahony filed a motion to withdraw as petitioner's attorney the Wednesday after the hearing, arguing that
Although the record does not disclose that anything had occurred regarding Mahony's representation of petitioner between the hearing on petitioner's Church v. Gladden motion and the filing of Mahony's motion to withdraw, the court granted Mahony's motion and ordered petitioner to proceed pro se. In response, petitioner filed a motion for reconsideration that asked the court to rescind its order that allowed Mahony to withdraw as his counsel and, if the court did not do that, then to appoint new counsel for him. Petitioner emphasized in his motion that he needed “the assistance and advice of counsel regardless of how perfunctory that attorney is.” The court denied the motion and, after a trial, entered a judgment denying the petition for post-conviction relief.2
On appeal, petitioner argues that the trial court violated his right to counsel under ORS 138.590 3 when it granted Mahony's motion to withdraw and ordered petitioner to proceed pro se. Defendant advances two arguments in response. First, defendant contends that the statutory argument that petitioner raises on appeal is not preserved because he did not argue to the trial court that ORS 138.590 required the court to appoint substitute counsel when it granted Mahony's motion to withdraw. Second, defendant argues that, even if petitioner's argument is preserved, ORS 138.590 does not require a trial court to appoint substitute counsel in a post-conviction case. Rather, according to defendant, the trial court has discretion whether to appoint substitute counsel after allowing appointed counsel to withdraw, and the court did not abuse its discretion in this case. For the reasons that follow, we conclude that petitioner's argument is preserved, and, as to the merits, we agree with petitioner.
We must first decide whether petitioner's argument is preserved, as required by ORAP 5.45(1).4 Although ORAP 5.45(1) generally requires a party to raise an issue with the trial court in order for us to consider it on appeal, the requirements that a party must meet to adequately raise an issue before the trial court vary depending on the nature of the claim or argument. Peeples v. Lampert, 345 Or. 209, 219–20, 191 P.3d 637 (2008). When the construction and application of a statute controls the outcome of a case, “the ordinary rules of preservation are somewhat more lax.” State v. Smith, 184 Or.App. 118, 122, 55 P.3d 553 (2002). For example, and importantly for this case, a statute may be addressed and given effect on appeal despite the failure to cite the statute to the trial court if the statute is clearly implicated in the issue that the party raised at trial. See id.
Here, petitioner's argument on appeal focuses on his right to appointed counsel in his post-conviction case, an issue that he raised before the post-conviction court through his motion that asked the court to reconsider its decision to allow Mahony to withdraw and, if the court did not rescind its order, then to appoint him substitute counsel. The right to appointed counsel in post-conviction cases is created by statute—ORS 138.590—and, therefore, the issue raised in petitioner's motion necessarily implicates the proper...
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