Ramsey v. Thompson

• Citation: 162 Or. App. 139,986 P.2d 54
• Parties: Chad A. RAMSEY, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent.
• Decision Date: 04 August 1999
• Court: Court of Appeals of Oregon

986 P.2d 54

162 Or. App. 139

Chad A. RAMSEY, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent.

(97C-10193; CA A101460)

Court of Appeals of Oregon.

Argued and Submitted February 22, 1999.

Decided August 4, 1999.

George W. Kelly argued the cause and filed the briefs for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Petitioner appeals from an adverse judgment in this action for post-conviction relief. ORS 138.650. He raises two assignments of error: (1) the trial court erred in determining that his criminal trial counsel's failure to call two witnesses and alleged "conflict of interest" did not breach the standard of constitutionally adequate representation; and (2) the court erred in denying his pretrial motion to amend his petition. We reject the first assignment of error without further discussion. However, we conclude that the trial court abused its discretion in denying petitioner's motion to amend his petition for post-conviction relief. ORS 138.610. Consequently, we reverse and remand for further proceedings.

On January 17, 1997, petitioner filed a pro se petition for post-conviction relief. The trial court subsequently appointed counsel for petitioner and, in April 1997, the court set an initial trial date of September 5, 1997. In June 1997, the court appointed substituted counsel for petitioner's first attorney, who had not yet filed a formal petition for post-conviction relief.

Following the appointment of substituted counsel, the court reset the trial date to December 4, 1997. On October 3, 1997, petitioner's counsel filed the formal First Amended Petition for Post-Conviction Relief. Paragraph six of that petition alleged, in part:

"1. Petitioner's rights to effective assistance of counsel * * * were violated when [petitioner's counsel] unreasonably and prejudicially failed to diligently and conscientiously exercise skill and professional judgment * * * in the following particulars:

"a. Failing to subpoena Salem Police Department records and/or personnel regarding the victim in this case to use at trial and/or in rebuttal that in fact the victim was a drug dealer and under investigation by their department;

"b. Failing to call eye-witness Scott Christman, the victim's stepson, after subpoenaing said person for trial. Mr. Christman could have testified that at the time of the shooting, Petitioner was unarmed;

"c. Failing to compel marshalls to put witnesses on the stand;

"d. Failing to advise the court that he had a conflict of interest in this case as a result of his representation of two conflicting cases. * * *

"e. Failed to investigate potential witnesses and call them at the time of trial * * *;

"f. Failed to request a competency hearing on eye-witness * * * after the district attorney claimed that [the witness] was unfit to testify; and

"g. Failed to present a proper theory of self-defense in this case for his failure to call the proper witnesses.

"2. Petitioner's right to a fair trial and due process was violated when:

"* * * * *

"c. The prosecution coerced [a potential witness] to evade trial testimony and evade subpoena by defense counsel when said witness would have testified that the victim called him just before meeting the Petitioner and told him that he was going to kill Petitioner;

"* * * * *

"e. Petitioner was denied his right to oral argument on his motion for a new trial;

"* * * * *

"3. Petitioner's sentence is illegal in that:

"a. The court, prior to sentencing, denied Petitioner time to complete a psychological evaluation that had already been scheduled. The psychological evaluation was important to dispute a 1985 evaluation that deemed Petitioner had violent propensities. The 1985 evaluation was used as a determining factor in the upward departure and consecutive sentences given to Petitioner;

"b. The court used a juvenile conviction for burglary, battery, unauthorized use of a motor vehicle and grand theft, which had not been proven by the district attorney, as a reason to depart on Petitioner's sentence and to sentence Petitioner to consecutive sentences;

"c. The court sentenced Petitioner to an upward departure based on permanency of injury to the victim, contrary to a stipulation by the parties of serious physical injury, not permanent physical injury;

"d. The court considered an incorrect PSI in sentencing."

On October 31, 1997, defendant filed a motion to strike, inter alia, subparagraphs 6(2)(c) and (e) and 6(3)(a), (b), (c) and (d) of the first amended petition for post-conviction relief. Defendant asserted that, under the analysis of Palmer v. State of Oregon, 318 Or. 352, 354, 867 P.2d 1368 (1994), petitioner was precluded from litigating those claims, in that "all of the claims at issue in this Motion to Strike are of the sort that could have been raised during the underlying criminal proceeding."¹

On November 18, 1997, 17 days before the scheduled trial date, petitioner responded to defendant's motion to strike and, in so doing, moved for leave to file a second amended petition for post-conviction relief in which the allegations of subparagraphs 6(2)(c) and (e) and 6(3)(a)-(d) would be amended to include allegations that criminal trial counsel had been ineffective in failing to raise those matters. Thus, the proposed amendments would have addressed defendant's objections that those allegations were legally insufficient under Palmer.

Defendant opposed petitioner's motion for leave to amend:

"Defendant assumed petitioner was aware of [Palmer] and its preclusive effect with respect to post-conviction claims regarding errors that reasonably could have been raised at trial when petitioner filed his first Amended Petition. Defendant has prepared its defense of this case accordingly. "Because defendant did not believe the claims that have been stricken were viable, defendant has not expended resources in preparing a defense to those claims. Defendant has certainly also not expended resources in preparing a defense to certain claims of prosecutorial misconduct and against the trial court in the event petitioner would choose at trial to couch them as claims of ineffective assistance of counsel.

"In sum, defendant will be prejudiced if this court allows petitioner to amend his petition the week prior to trial."

The trial court granted defendant's motion to strike and, without explanation, denied petitioner's motion for leave to amend his petition. The court subsequently entered judgment against the balance of petitioner's allegations.

On appeal, petitioner assigns error to the trial court's denial of leave to amend. ORS 138.610 provides:

"Within 30 days after the docketing of the petition, or within any further time the court may fix, the defendant shall respond by demurrer, answer or motion. No further pleadings shall be filed except as the court may order. The court may grant leave, at any time prior to entry of judgment, to withdraw the petition. The court may make appropriate orders as to the amendment of the petition or any other pleading, or as to the filing of further pleadings, or as to extending the time of the filing of any pleading other than the original petition."

The court's allowance, or denial, of leave to amend under ORS 138.610 is reviewed for abuse of discretion. Luther v. State of Oregon, 83 Or.App. 336, 345, 732 P.2d 24, rev. den. 303 Or. 483, 737 P.2d 1249 (1987). In Temple v. Zenon, 124 Or.App. 388, 862 P.2d 585 (1993), we indicated that, while the trial court has "broad discretion" with respect to amendment of post-conviction pleadings, the exercise of that discretion should comport with ORCP 23 A's directive that leave to amend "shall be freely given when justice so requires." Id. at 390, 862 P.2d 585.² Thus, our review implicates the interplay of two expansive, perhaps amorphous, principles: Leave to amend is to be "freely given when justice so requires," and the trial court exercises "broad" authority in making that "discretionary determination." Temple, 124 Or.App. at 391,862 P.2d 585. Our cases have, in fact, endorsed a "broad" view of that authority. Indeed, we are unaware of any appellate decision under ORS 138.610 or ORCP 23 A reversing the allowance or denial of leave to amend. Nevertheless, "discretion" is not absolute. There are limits. See Casciato v. Oregon Liquor Control Com., 181 Or. 707, 715-16, 185 P.2d 246 (1947) (trial court ruling represents "abuse of discretion" when it "exceeds the bounds of reason" or is "clearly against[ ] reason and evidence"). Accord State ex rel Pend-Air v. City of Pendleton, 145 Or.App. 236, 247, 929 P.2d 1044 (1996),

rev. den. 325 Or. 45, 934 P.2d 1125 (1997) ("`[D]iscretion'—or, conversely, `abuse of discretion'—must be tested against some undescribed criteria. We must identify the criteria there pertinent in this case.").

Only two cases, Temple and Luther, appear to address motions to amend under ORS 138.610, and neither explicitly identifies the criteria that inform and circumscribe the exercise of discretion. Still, those cases, while not purporting to be comprehensive, at least touch on four considerations bearing on the appropriate exercise of discretion: (1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments.

In Luther, for example, we affirmed the trial court's denial of the petitioner's mid-trial attempt to amend his pleadings, which had "related [only] to the way in which [criminal] trial counsel conducted the trial," to add a claim "based on constitutionally deficient performance in investigating the case...