Owens v. Maass

• Decision Date: 27 June 1996
• Docket Number: C-13426
• Parties: James S. OWENS, Petitioner on Review, v. Manfred (Fred) MAASS, Superintendent, Oregon State Penitentiary, Respondent on Review. CC 93; CA A85646; SC S42521.
• Court: Oregon Supreme Court

Page 808

918 P.2d 808

323 Or. 430

James S. OWENS, Petitioner on Review, v. Manfred (Fred) MAASS, Superintendent, Oregon State Penitentiary, Respondent on Review.

CC 93C-13426; CA A85646; SC S42521.

Supreme Court of Oregon.

Argued and Submitted Jan. 8, 1996.

Decided June 27, 1996.

David W. Knofler, Multnomah Defenders, Inc., Portland, argued the cause for petitioner on review. Michael E. Rose filed the petition.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

CARSON, Chief Justice.

In this action for post-conviction relief, we are asked to interpret the provisions contained in ORS 138.510(2) (1993) and Oregon Laws 1993, chapter 517, section 5, relating to time limitations upon the filing of a petition for post-conviction relief.

Petitioner was convicted of three counts of rape in the first degree and one count of burglary in the first degree on June 6, 1989. His convictions were affirmed on appeal and became final on January 13, 1992. On November 24, 1993, nearly two years after his convictions became final on appeal, petitioner filed a petition for post-conviction relief. The post-conviction court determined that, because petitioner had not filed his petition within 120 days after his convictions became final on appeal, the petition was time-barred under ORS 138.510(2)(b) (1991). ¹ Accordingly, the post-conviction court dismissed the petition. Petitioner appealed to the Court of Appeals, which affirmed without opinion. Owens v. Maass, 135 Or.App. 696, 898 P.2d 818 (1995). We allowed review and now affirm the decision of the Court of Appeals.

At the time that petitioner's convictions became final on appeal, ORS 138.510 (1991) provided, in part:

"(1) 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.

"(2) A petition pursuant to ORS 138.510 to 138.680 must be filed within 120 days of the following * * *:

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

"(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts." ² (Emphasis added.)

The 1993 legislature amended ORS 138.510(2), by deleting the words "120 days" and substituting the words "two years." Or. Laws 1993, ch 517, § 1. That amendment became effective on November 4, 1993, more than 120 days, but less than two years, after petitioner's convictions became final.

Petitioner contends that the two-year filing period contained in ORS 138.510(2) (1993), rather than the 120-day filing period contained in ORS 138.510(2) (1991), should apply to his petition for post-conviction relief, because he did not file his petition until after the effective date of the new, two-year filing period. The state ³ contends that petitioner's right to file for post-conviction relief became time-barred on April 13, 1992, 120 days after his convictions became final and, consequently, that the new, two-year filing period cannot apply to the petition filed on November 24, 1993. For the reasons that follow, we agree with the state.

The issue presented requires us to interpret ORS 138.510(2) (1993), in order to determine whether the two-year filing period applies to petitioner's petition. When construing a statute, this court's task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). In our first level of analysis, we examine the text and context of the statute at issue. Id. at 610-11, 859 P.2d 1143.

We begin with the text of ORS 138.510(2) (1993), which provides the best evidence of the legislature's intent. See PGE, 317 Or. at 610, 859 P.2d 1143 (stating principle). The operative text provides, in part, that a petition for post-conviction relief "must be filed within two years of * * * [either] the date the judgment or order on the conviction was entered in the register [or] * * * the date the appeal is final in the Oregon appellate courts." That text is not helpful to our determination of the legislature's intent when it expanded the filing period contained in ORS 138.510(2).

When we turn to the context of ORS 138.510(2), however, we observe that the 1993 legislature did speak to which petitions are subject to the new, two-year filing period. Oregon Laws 1993, chapter 517, section 5, provides, in part:

"[T]he amendments to ORS 138.510 * * * by section[ ] 1 [ ⁴ * * * of this Act apply to all petitions for post-conviction relief filed after the effective date of this Act." ⁵ (Emphasis added.)

Petitioner argues that, under the plain words of section 5 of Oregon Laws 1993, chapter 517, the two-year filing period applies to his petition, because his petition is a "petition[ ] for post-conviction relief filed after the effective date of [the] Act." In petitioner's view, a literal reading of ORS 138.510(2) and section 5 suggests that if, at the time a petition were filed, less than two years had elapsed from the date when the petitioner's conviction became final, the petition would be timely.

At first glance, section 5 does appear to include a petition such as the one filed in this case, because petitioner filed his petition after November 4, 1993, the effective date of the 1993 amendments to ORS 138.510, and his appeal became final less than two years before the filing of his petition. In examining section 5, we also are mindful of the general rule that "words of common usage typically should be given their plain, natural, and ordinary meaning." PGE, 317 Or. at 611, 859 P.2d 1143. In view of that rule, petitioner's argument is made more plausible by the legislature's inclusion of the word "all" in section 5, which means, among other things, "every member or individual component." Webster's Third New Int'l Dictionary 54 (unabridged ed 1993). (Emphasis added.) Section 5 also demonstrates that the legislature, when determining which petitions should benefit from the new filing period, selected a different triggering event than that contained in ORS 138.510(2), choosing to focus upon the date when a petition is filed, rather than upon the date when a conviction becomes final.

The state contends that the phrase "all petitions for post-conviction relief filed after the effective date of this Act" does not really mean all petitions but, rather, precludes petitions that already had become time-barred under the 120-day filing period, before the effective date of the 1993 amendments to ORS 138.510. In other words, the state urges this court to interpret section 5 to include all petitions for post-conviction relief that still could be filed under the 120-day filing period.

The state's proposed interpretation of section 5 conflicts with the general rule of construction contained in ORS 174.010, which provides that, when construing a legislative enactment, this court may not "insert what has been omitted" nor "omit what has been inserted." The state seeks to insert what has been omitted because, as noted above, the state contends that section 5 includes all petitions that had not become time-barred under the 120-day filing period, before the effective date of the 1993 amendments. Moreover, by ignoring the word "all" in section 5, the state seeks to omit what has been inserted by the legislature.

There are, however, additional aspects of the context of ORS 138.510(2), all of which need to be considered in carrying out the first level of statutory interpretation. Those additional aspects include other provisions of ORS 138.510, applicable case law interpreting those other provisions, and prior legislative changes to ORS 138.510(2). See PGE, 317 Or. at 611, 859 P.2d 1143 (stating that context includes other provisions of the statute at issue); Davis v. O'Brien, 320 Or. 729, 741, 891 P.2d 1307 (1995) (stating that prior statutory interpretations are part of the court's contextual analysis); Boone v. Wright, 314 Or. 135, 138, 836 P.2d 727 (1992) (court examined legislative changes to the statute at issue as part of analyzing context).

ORS 138.510 was enacted in 1959 as part of the original Post-Conviction Hearing Act. Or Laws 1959, ch 636, §§ 1, 16, and 17. Before 1989, ORS 138.510 contained no statutory filing period and, consequently, criminal defendants faced no time limitation in filing for post-conviction relief. In 1989, the legislature enacted what is now subsection (2) of ORS 138.510, creating the 120-day filing period. That provision, which did not contain any words of retroactivity, became effective on August 5, 1989. Or Laws 1989, ch 1053, § 18.

In 1992, this court determined that the 120-day filing period contained in ORS 138.510(2) (1989) could not apply retroactively to bar petitions filed, or to be filed, by criminal defendants whose convictions became final before the effective date of the 120-day filing period. Boone, 314 Or. at 135, 836 P.2d 727. Consequently, defendants whose convictions became final before August 5, 1989, continued to have no time limitation upon their ability to file for post-conviction relief, while defendants whose convictions became final after that date were subject to the 120-day filing period.

In 1993, as previously discussed, the legislature extended the 120-day filing period contained in ORS 138.510(2) to two years. At the same time, the 1993 legislature also enacted subsection (3) of ORS 138.510. Or Laws 1993, ch 517, § 1. That subsection provides, in part:

"A one-year filing period shall apply retroactively to petitions filed by persons whose convictions and appeals became final before August 5, 1989, and any such petitions must be filed within one year after November 4, 1993."

The effect of subsection (3) is to provide a one-year window during which criminal de...