Palmer v. State

CourtSupreme Court of Oregon
Writing for the CourtBefore CARSON; GILLETTE
Citation867 P.2d 1368,318 Or. 352
PartiesWayne B. PALMER, Respondent on Review, v. STATE of Oregon, Petitioner on Review. CC 16-90-06124; CA A71861; SC S40704.
Decision Date25 February 1994


GILLETTE, Justice.

The issue in this case is whether a petitioner may assert as a ground for post-conviction relief an issue that was not raised at trial in the underlying criminal proceeding, when the petitioner reasonably could have been expected to raise that issue in the trial court and when the petitioner does not assert that the failure to raise that issue constituted inadequate assistance of trial counsel. We hold that a petitioner may not assert such an issue as a ground for post-conviction relief.

In 1988, following a bench trial in which he was represented by counsel, petitioner was convicted of unlawful possession of a firearm, ORS 166.250, for possessing a concealed handgun. On direct appeal, the Court of Appeals affirmed his conviction without opinion, and this court denied review. State v. Palmer, 97 Or.App. 588, 778 P.2d 515, rev. den. 308 Or. 405, 781 P.2d 855 (1989). Subsequently, petitioner instituted the present proceeding, seeking relief from his conviction under the Post-Conviction Hearing Act, ORS 138.510 to 138.680.

In his third amended petition, petitioner asserted two claims for relief, only one of which--the second--is before us on review. 1 As his second claim for relief, petitioner asserted that he was entitled to post-conviction relief because ORS 166.250, the statute defining the crime of which he was convicted, is "unconstitutionally vague," due to its failure to define the word "concealed." Petitioner alleged that he could not have asserted the unconstitutionality of the statute on direct appeal from his conviction, 2 "because it was not an issue preserved by objection in the trial record." Petitioner did not offer any explanation for his failure to raise the constitutional challenge in the trial court nor, as noted, did he assert the failure to raise the issue at trial as a basis for a claim of inadequate assistance of trial counsel. 3

The state demurred to the third amended petition, and the post-conviction court allowed the demurrer and dismissed the case. Petitioner appealed. On appeal, the state argued, as it had below, that petitioner could not raise his constitutional challenge to ORS 166.250 for the first time in a post-conviction relief proceeding, except as a basis for a claim of inadequate assistance of counsel, which he had not done. A majority of the Court of Appeals' panel disagreed, holding that petitioner was not precluded from raising his constitutional challenge for the first time in the post-conviction relief proceeding. Palmer v. State of Oregon, 121 Or.App. 377, 381-84, 854 P.2d 955 (1993). Nonetheless, the Court of Appeals affirmed the judgment dismissing the second claim for relief on the ground that ORS 166.250 was not void for vagueness, as petitioner had contended. Id. at 384, 854 P.2d 955. 4 We allowed the state's petition for review to address whether the Court of Appeals properly reached the merits of petitioner's constitutional challenge to ORS 166.250.

In reaching the merits of petitioner's vagueness challenge, the Court of Appeals' majority held, in effect, that any constitutional challenge that is not preserved in the trial court in the underlying criminal proceeding nonetheless may be raised in a post-conviction relief proceeding, regardless of the circumstances under which the petitioner failed to raise that issue at trial. On review, the state argues that the majority erred in that holding. 5 The state contends that a petitioner seeking post-conviction relief may not raise a constitutional challenge that could have been, but was not, raised in the trial court, except in a few limited circumstances, none of which have been alleged by petitioner in this case. For the reasons that follow, we agree with the state and hold that petitioner did not state a cognizable claim for post-conviction relief in his constitutional challenge to ORS 166.250.

The Court of Appeals' majority relied on ORS 138.550(1), which provides in part that "[t]he failure of [a] petitioner * * * to have raised matters alleged in the petition at the trial of the petitioner * * * shall not affect the availability of relief under [the Post-Conviction Hearing Act]." On its face, ORS 138.550(1) might appear to support the conclusion reached by the Court of Appeals' majority in this case, viz., that petitioner's failure to raise his constitutional challenge to ORS 166.250 in the trial court did not preclude him from raising it in this post-conviction relief proceeding. As the state points out, however, this court interpreted that statute more narrowly in North v. Cupp, 254 Or. 451, 461 P.2d 271 (1969), cert. den. 397 U.S. 1054, 90 S.Ct. 1396, 25 L.Ed.2d 670 (1970), and that narrow interpretation does not support the conclusion of the Court of Appeals' majority.

In North v. Cupp, incriminating evidence obtained from a warrantless search of North's automobile was introduced without objection at North's criminal trial. Following his conviction, North appealed unsuccessfully. In that appeal, he did not assign error to the admission of the evidence found in the warrantless search. Subsequently, North brought a proceeding for post-conviction relief wherein he asserted "a violation of his Fourth Amendment rights because of the court's receipt of the evidence found in his automobile." 254 Or. at 454, 461 P.2d 271. The post-conviction court denied relief, and North sought review in this court.

At the outset of its opinion, this court noted that "[t]here can be little doubt that the search and seizure was in violation of the Fourth Amendment." Id. at 453, 461 P.2d 271. The court then raised a question that had not been argued by counsel, viz., "whether the provisions of Oregon's Post-Conviction Hearing Act dictate that petitioner prevail upon a showing that constitutionally defective evidence was introduced at his trial of conviction despite the absence of any objection to its introduction." Id. at 454, 461 P.2d 271. The court, after citing the portion of ORS 138.550(1) set out above, stated:

"If the statute is interpreted literally, it can be construed to mean that petitioner must be granted relief even though he did not object at trial and regardless of the reason for his failure to do so.

" * * * * *

"If ORS 138.550(1) is construed as putting the petitioner, under all circumstances, in the same situation as he was at trial, insofar as his right to enforce his constitutional right is concerned, it has in effect said that there can be no procedural restrictions on the subsequent assertion of constitutional rights. There has been a procedural rule of long standing in this state regarding contemporaneous objection to the introduction of inadmissible evidence before error may be asserted on appeal because of its admission. * * *

"This procedural rule would be completely eroded by permitting the granting of relief in post-conviction proceedings in the absence of an objection at trial. It would be senseless to require an objection to the evidence as a prerequisite to the assertion of error on appeal if the necessity for such an objection could subsequently be avoided by instituting an application for post-conviction relief. We cannot believe the legislature intended any such result.

"However, there are situations in which the law recognizes that it is inappropriate to require a contemporaneous objection at trial as a prerequisite to the subsequent raising of the constitutional issue. We believe that the provision in question was intended to prevent the assertion of the procedural rule in such situations. The most common illustration is where the objection could conceivably have been made but could not reasonably have been expected. Examples are where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. Also, the failure to assert the right would not be a bar where counsel was incompetent or was guilty of bad faith."

254 Or. at 454-57, 461 P.2d 271.

This court went on to explain that North had not shown any of the enumerated circumstances that reasonably would have justified the failure to raise the constitutional issue in the trial court. The court then concluded:

"When a petitioner has a competent attorney who is not guilty of fraud and all the circumstances are such that the attorney would reasonably have been expected to object to constitutionally defective evidence, there is nothing unfair in asserting in post-conviction proceedings the procedural rule requiring a contemporaneous objection. There is no substantial denial of a constitutional right. Certainly, in such a situation, everything has been done that can be done to provide petitioner with an opportunity to assert his constitutional right at his trial of conviction."

Id. at 459, 461 P.2d 271. Accordingly, the court held that North was not entitled to post-conviction relief based on the admission of the constitutionally defective evidence.

Following this court's decision in North v. Cupp, ORS 138.550(1) became subject to the following qualification: When a criminal defendant fails to raise an issue at trial that the defendant reasonably could have been expected to raise, the defendant cannot obtain post-conviction relief on that ground unless the defendant alleges and proves that the failure to raise the issue was due to one (or more) of a few narrowly drawn exceptions. Under the facts of this case, the only exception available would be (so far as we are...

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