Peeples v. Lampert
| Decision Date | 14 August 2008 |
| Docket Number | CC03C-21423.,SC S054437).,CA A122837 (Control),CA A125027.,CC 02011658M. |
| Citation | 345 Or. 209,191 P.3d 637 |
| Parties | Jason J. PEEPLES, Petitioner on Review, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent on Review. Jason J. Peeples, Petitioner on Review, v. Brian Belleque, Superintendent, Oregon State Penitentiary, Respondent on Review. |
| Court | Oregon Supreme Court |
Patrick M. Ebbett, Chilton, Ebbett & Galli, LLC, Portland, argued the cause and filed the briefs for petitioner on review.
Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Walter J. Ledesma, Woodburn, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
In this post-conviction case, the trial court dismissed the petition for relief as a sanction for petitioner's refusal to participate in a scheduled deposition. On appeal, petitioner argued that the trial court erred by failing to make special findings to support the dismissal, as required by Pamplin v. Victoria, 319 Or. 429, 877 P.2d 1196 (1994). A panel of the Court of Appeals divided on whether that challenge must be preserved to be raised on appeal. Peeples v. Lampert, 209 Or.App. 17, 25-26, 146 P.3d 352 (2006) (preservation rules apply); id. at 29-30, 146 P.3d 352 (Ortega, J., dissenting) (). Petitioner sought review, which we allowed. We now hold that a challenge to a trial court's failure to make the special findings required by Pamplin is subject to preservation rules. Because petitioner did not preserve that challenge in this case, we affirm.
The pertinent facts are procedural in nature. After pleading guilty to two criminal offenses, petitioner filed a first pro se petition for post-conviction relief in Malheur County. An attorney was appointed to represent him, and that attorney, about nine months after the original petition was filed, filed an amended petition for post-conviction relief. Trial then was scheduled for a year after that. On the day of trial, petitioner asked to amend his petition, to have a new attorney appointed to represent him, and to have the case continued for further investigation. The post-conviction court denied those requests. When petitioner refused to proceed, the court dismissed the case without prejudice.
About two months after that dismissal, petitioner filed a second pro se petition for post-conviction relief, this time in Marion County. An attorney was again appointed to represent him, and that attorney filed an amended petition. Petitioner expressed concerns to his counsel about allegations that were in his original pro se petition but were not included in the amended petition. His counsel, after corresponding with petitioner, decided not to restore any of those allegations. Meanwhile, the state scheduled petitioner's deposition.1 Although petitioner and his counsel came to the scheduled deposition, petitioner refused to be deposed, claiming that he was not ready to proceed. The state moved to dismiss the petition as a sanction for petitioner's refusal. See ORCP 46 D (authorizing sanctions for party's failure to appear at own deposition); ORCP 46 B (enumerating possible sanctions, including "an order * * * dismissing the action"). Alternatively, the state asked that petitioner be required to pay all costs that the state had incurred due to petitioner's refusal to be deposed.
Both parties submitted affidavits and other evidence in the hearing on the state's motion to dismiss. Counsel for the state, who also had represented the state in the Malheur County action, by affidavit described petitioner's unwillingness in that case to proceed and his day-of-trial efforts to amend his petition, which had been previously amended and had been awaiting trial for a year. The state took the position that petitioner's refusal to be deposed in the Marion County action was unreasonable and that petitioner was delaying that proceeding in the same way that he had delayed the Malheur County proceeding.
In opposition to the motion to dismiss, petitioner disputed that he had refused to be deposed. In the written memorandum opposing dismissal, petitioner's counsel urged that, even if the post-conviction court found that petitioner had refused to be deposed, dismissal as a sanction was not warranted. As an alternative, he suggested that petitioner be required to pay only the cost of the three-page transcript of the terminated deposition. Petitioner's written opposition was supported by an affidavit from his counsel representing that, on the day of the deposition, petitioner had clarified his objections to the amended petition for post-conviction relief, which caused counsel to reconsider a possible amendment to the petition. Petitioner's counsel asserted that petitioner had wanted the deposition postponed.
At the hearing on the motion, petitioner likewise told the court that he wanted to get his petition amended, and was not refusing to be deposed. In particular, petitioner personally represented to the post-conviction court that, at the time of the scheduled deposition, he had "no problem being deposed" and that, if the state's attorney had deposed him at that time, he would have cooperated. The transcript of the terminated deposition, however, was also before the post-conviction court. In it, petitioner had affirmatively confirmed his attorney's representation that petitioner was not ready to be deposed and that he wanted the deposition rescheduled for another time. Petitioner's counsel acknowledged to the post-conviction court that petitioner's dissatisfaction with the claims pleaded in the amended petition might "sound familiar, given the prior proceeding [in Malheur County]." Neither counsel nor petitioner identified what claims or allegations might be added to the amended petition.
The post-conviction court dismissed the petition with prejudice. At the conclusion of the hearing, the court orally observed that petitioner had many opportunities, during the two years after filing his first post-conviction petition in Malheur County, to amend his petition. The court concluded that petitioner was unwilling to participate and was "wast[ing]" the court's time. The court directed the state to prepare the judgment dismissing the action. In that judgment, the court made the following findings:
By way of, the post-conviction court explained why it found that petitioner "chose not to participate in his deposition":
"While [petitioner] stated at this hearing that he did not refuse, the transcript, plaintiff's attorney's statement, and plaintiff's past history show that treating his request for further delay as a refusal is not unreasonable, and well-founded under the circumstances."
On appeal to the Court of Appeals, petitioner argued that, procedurally, the post-conviction court had failed to make the findings that Pamplin identified as necessary for meaningful appellate review. In particular, petitioner contended that the post-conviction court was required to explain expressly why lesser sanctions were not appropriate. As noted earlier, the Court of Appeals panel divided on whether petitioner had to preserve that issue. Two members of the three-judge panel concluded that he was required to do so; one judge would have held that preservation rules did not apply to the findings required by Pamplin. Peeples, 209 Or. App. at 23-26, 146 P.3d 352 (majority); id. at 27-30, 146 P.3d 352 (Ortega, J., dissenting). We allowed review to resolve that issue.
We begin by examining the legal authority for the post-conviction court's dismissal of the petition for post-conviction relief and the court's obligation to make findings in support of that action. Under ORCP 46 D, if a party fails to cooperate in a properly scheduled deposition, a trial court may sanction the party by "mak[ing] such orders in regard to the failure as are just[.]"2 Among the orders that the rule specifically authorizes is dismissal of the action, pursuant to ORCP 46 B(2)(c).3 In Pamplin, this court held that, for dismissal under ORCP 46 B(2)(c) to be "just," an uncooperative party must act with "willfulness, bad faith, or fault of a similar degree on the part of the disobedient party." 319 Or. at 434, 877 P.2d 1196. This court further held that, to support a sanction of dismissal, a trial court must make specific findings resolving any factual disputes and explaining why such a sanction is warranted. Id. at...
To continue reading
Request your trial
-
State v. Keys
...for the first time on appeal unless the defect comes within an exception to the preservation rule. See id. ; cf. Peeples v. Lampert , 345 Or. 209, 219-21, 191 P.3d 637 (2008) (discussing exceptions to the preservation rule). In answering the first question it posed, Huffman did not explicit......
-
State v. Bray
...fairness to the parties and the trial court, judicial economy, and full development of the record. See Peeples v. Lampert , 345 Or. 209, 219-21, 191 P.3d 637 (2008) (discussing and reaffirming the importance of the preservation rule). "Ultimately, the preservation rule is a practical one, a......
-
Buchwalter-Drumm v. State
...foster a full development of the record." State v. Clemente-Perez , 357 Or. 745, 752, 359 P.3d 232 (2015) (citing Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637 (2008) ). Thus, the court has repeatedly emphasized that "the question whether an argument has been preserved ‘inevitably ......
-
State v. Sanelle, A156503.
...preservation, in general, if an issue has not been presented to the trial court, we will not consider it on appeal. Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637 (2008) ; ORAP 5.45(1). There are important reasons for the rule of preservation. The rule "gives a trial court the chance t......