Phillips v. Premo
| Decision Date | 08 September 2016 |
| Docket Number | A154571 |
| Citation | 381 P.3d 986,280 Or.App. 634 |
| Parties | Kenneth Wayne Phillips, Petitioner–Appellant, v. Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
280 Or.App. 634
381 P.3d 986
Kenneth Wayne Phillips, Petitioner–Appellant,
v.
Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
A154571
Court of Appeals of Oregon.
Submitted September 3, 2015.
September 8, 2016
Ryan O'Connor filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.
DUNCAN, P.J.
Petitioner appeals the judgment denying his petition for post-conviction relief (PCR), assigning error to the PCR court's denial of his motion for a continuance. As explained below, we conclude that the PCR court abused its discretion by denying the motion without affording petitioner an opportunity to make a sufficient record regarding the basis for the motion. Accordingly, we reverse and remand.
Petitioner filed a PCR petition, and an attorney, Cowan, was appointed to represent him in the PCR proceedings. On the day of the PCR trial, petitioner appeared by video from the correctional facility where he was housed, and his attorney appeared in person. When petitioner's attorney called petitioner as a witness, petitioner moved for a continuance:
“[PETITIONER]: Your Honor, before we begin I'd like to address the Court. I am moving at this time for a continuance of this proceeding.
“THE COURT: That's not allowed, Mr. Phillips. I'm denying your motion as not timely. Go ahead, Mr. Cowan.
“ * * * * *
“[PETITIONER]: I can't state something for the record?
“THE COURT: * * * Mr. Phillips you're asking that this be continued, and the answer to that [is] it's not going to be continued. So, go ahead please.
“[PETITIONER]: I mean—
“THE COURT: Oh.
“[PETITIONER]: Mr.—well, I'd like to put on the record that Mr. Cowan has been non-responsive to my request to assist me and has completely failed to provide suitable counsel as required for my post conviction proceedings.
“THE COURT: All right.
“[PETITIONER]: Mr. Cowan—
“THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented
you. I am not going to delay these proceedings based on your belief about that. And if you have a basis for that contention that can be taken up some other time and place, but not now.
“[PETITIONER]: Well, I'd like to state these—
“THE COURT: Mr. Cowan, would you please begin.
“[PETITIONER]: I'd like to state these issues on the record, Your Honor.
“THE COURT: I don't want to—
“[PETITIONER]: This is the only time in a post conviction proceedings.
“THE COURT: Well, you have said that you feel he has been unresponsive and not represented you adequately. That's about as broad as it possibly could be Mr. Phillips. [It] covers about everything—
“[PETITIONER]: Well, there's—there's—
“THE COURT: —that you might later claim. So—
“[PETITIONER]: There's witnesses—
“THE COURT: —I'm going to ask you sir to not discuss this further. If my failure to listen to you further is some error on my part that can be taken up. Mr. Cowan please go ahead.”
To recap, petitioner moved for a continuance, and the PCR court summarily denied the motion as untimely and directed petitioner's attorney to proceed. Petitioner then asked if he could “state something for the record,” and the court responded that the case would not be continued and again directed petitioner's attorney to proceed. Petitioner informed the court that his attorney had been nonresponsive and had failed to provide suitable counsel, and the court responded that it would not delay the proceedings and that if petitioner had a basis for his complaints about his attorney that could be “taken up some other time and place[.]” Petitioner said that he wanted to make a record, and the court responded by directing petitioner's attorney to proceed for the third time. When petitioner repeated that he wanted to make a record, the court said that petitioner's general complaints about his attorney would “cover about
everything” petitioner might later claim. When petitioner spoke again, the court asked him to “not discuss this further” and, for the fourth time, directed petitioner's attorney to proceed.
On appeal, petitioner asserts that the PCR court erred by denying his motion for a continuance. We review the denial of a motion for a continuance for abuse of discretion. State v. Ferraro , 264 Or.App. 271, 280, 331 P.3d 1086 (2014). A court errs if it “fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.” State v. Mayfield , 302 Or. 631, 645, 733 P.2d 438 (1987) ; State v. Romero , 236 Or.App. 640, 643–44, 237 P.3d 894 (2010).
We conclude that the PCR court abused its discretion by denying petitioner's motion for a continuance without allowing petitioner to make a record regarding the basis for the motion. Whether denial of a motion for a continuance is error depends on the particular circumstances of the case. State v. Ringler , 264 Or.App. 551, 556, 333 P.3d 1080, rev. den. , 356 Or. 575, 342 P.3d 88 (2014) ; State v. Hickey , 79 Or.App. 200, 203, 717 P.2d 1287 (1986). Here, the PCR court refused to afford petitioner an opportunity to identify the relevant circumstances. Consequently, the court was not in a position to make an informed ruling on the motion.
The PCR court initially stated that it was denying petitioner's motion as untimely, but the court did not provide petitioner an opportunity to explain why he was making the motion when he was. Unanticipated circumstances can arise, and a trial court cannot deny a motion for a continuance simply because the motion is made on the day of trial; whether a court may deny such a motion depends upon the particular circumstances of the case. See Hickey , 79 Or.App. at 204, 717 P.2d 1287 (trial court abused its discretion by denying defendant's day-of-trial motion for a continuance, which was based on the fact that defendant's attorney's briefcase had been stolen the day before). A court may deny a day-of-trial motion for a continuance, absent a specific showing of good cause regarding the timing of the motion, but here, because the PCR court refused to allow petitioner to make a record, it did not have the information necessary to determine
whether petitioner had good cause for making the motion when he did.
Moreover, petitioner was able to alert the PCR court that his motion was related to his concerns about his court-appointed attorney. Depending on what they were, those concerns could have necessitated a continuance. For example, if petitioner's concern was that his attorney had a conflict of interest, the court would have had to hold a hearing, and, if there was such a conflict, the court would have had to appoint substitute counsel. See Combs v. Baldwin , 161 Or.App. 270, 276–77, 984 P.2d 366 (1999) (holding, in a habeas corpus proceeding, that “it is against reason
for a party in a civil case to be required to be represented by appointed counsel against the party's will and without a hearing on the merits of a claim of conflict of interest”); cf. Elkins v. Thompson , 174 Or.App. 307, 316, 25 P.3d 376 (2001) (holding, in a PCR case, that the petitioner was not entitled to a hearing regarding his complaints about his appointed counsel where he had not alleged a conflict of interest). And, as another example, if petitioner's concern was that his attorney had not raised certain claims, the court would have had to either instruct the attorney to raise the claims or appoint substitute counsel. See Church v. Gladden , 244 Or. 308, 311–12, 417 P.2d 993 (1966) (if a PCR petitioner's attorney fails to raise a claim, the petitioner must inform the PCR court of the attorney's failure so that, if warranted, the court can either instruct the attorney to raise the claim or appoint substitute counsel). But again, because the PCR court refused to allow petitioner to make a record, the court was not in a position to conclude that it could go forward with the trial. Consequently, the PCR court did not properly exercise its discretion when denying defendant's motion for a continuance, and we are required to reverse and remand. See State v. Harper , 81 Or.App. 422, 424–25, 725 P.2d 942 (1986) (reversing and remanding where the record did not indicate that the trial court considered whether the defendant's request for a continuance was reasonable under the circumstances).
The dissent contends that the PCR court did not err by denying defendant's motion for a continuance. Specifically,
the dissent contends that the PCR court could properly deny defendant's motion for three reasons: (1) petitioner made the motion himself, as opposed to having counsel make it; (2) the motion was untimely because it was not filed 28 days before trial as required by UTCR 6.030 ; and (3) the case had been pending for three years and the PCR court was...
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