Temple v. Zenon

• Court: Court of Appeals of Oregon
• Writing for the Court: Before RICHARDSON; DURHAM
• Citation: 124 Or.App. 388,862 P.2d 585
• Parties: Daniel Allen TEMPLE, Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institution, Respondent. 89C12050; CA A72380.
• Decision Date: 03 November 1993

Page 585

862 P.2d 585 124 Or.App. 388 Daniel Allen TEMPLE, Appellant,
v.
Carl ZENON, Superintendent, Oregon State Correctional
Institution, Respondent. 89C12050; CA A72380. Court of Appeals of Oregon. Argued and Submitted Sept. 11, 1992.
Decided Nov. 3, 1993.

Page 586

[124 Or.App. 389] David B. Kuhns, Salem, argued the cause and filed the brief for appellant.

Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.

Page 587

[124 Or.App. 390] DURHAM, Judge.

Petitioner appeals from the denial of his petition for post-conviction relief. He assigns error to the denial of his motions to amend the petition and to obtain a new appointed attorney and the denial of the petition.

Petitioner was convicted of burglary and unauthorized use of a vehicle. ORS 164.225; ORS 164.135. His appeal from the judgment was unsuccessful. On October 24, 1989, he filed this petition, claiming denial of his right to trial counsel and ineffective assistance of appellate counsel. On November 28, 1989, his post-conviction counsel filed an amended petition. On May 14, 1991, petitioner requested that counsel file a second amended petition, adding approximately 35 new claims. ¹ Petitioner received no response to his request, and his attorney did not file a second amended petition. On the day of his hearing, August 22, 1991, petitioner requested that the court allow him to amend his petition to add the new claims and appoint a new post-conviction attorney. The court denied both motions and denied his petition for post-conviction relief.

Petitioner assigns error to the denial of his motion to amend his petition. A trial court has broad discretion to allow amendment of pleadings. Hall v. Fox, 106 Or.App. 377, 380, 808 P.2d 99 (1991). ORS 138.610 provides, in part:

"No further pleadings shall be filed except as the court may order. * * * 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."

Leave to amend pleadings "shall be freely given when justice so requires." ORCP 23 A.

[124 Or.App. 391] Petitioner argues that justice required that he be allowed to amend, because the denial effectively foreclosed his ability to be heard on those issues. Post-conviction relief is the exclusive method in Oregon for collaterally attacking a conviction. ORS 138.540. ² Moreover,

"[a]ll grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 or 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition." ORS 138.550(3).

If a post-conviction attorney fails or refuses to raise a legitimate issue, the petitioner must promptly inform the court so that the court may rectify any problem. In Church v. Gladden, 244 Or. 308, 311, 417 P.2d 993 (1966), the court said:

"If petitioner's attorney in the first post-conviction proceeding failed to follow any legitimate request, petitioner could not sit idly by and later complain. He must inform the court at first opportunity of his attorney's failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner's request." 224 Or. at 311, 417 P.2d 993. (Emphasis supplied.)

Page 588

Petitioner claimed that he was surprised to learn on the eve of trial that his attorney had not amended the petition to include his new claims. The court refused to permit an amendment because the request was made on the day of trial and the attorney's decision not to include the requested amendments was correct. ³

[124 Or.App. 392] The court reasonably concluded that, because more than three months had elapsed from the time of petitioner's correspondence to counsel and the date of trial, he had sat idly by and was complaining too late. The court was not required to accept his implicit assertion that the day of trial was...