Wilson v. Armenakis, C-13225

• Citation: 144 Or.App. 587,928 P.2d 354
• Decision Date: 20 November 1996
• Docket Number: C-13225
• Parties: Thomas P. WILSON, Appellant, v. Nicholas ARMENAKIS, Superintendent, Oregon State Penitentiary, Respondent. 94; CA A91088.
• Court: Court of Appeals of Oregon

Page 354

928 P.2d 354

144 Or.App. 587

Thomas P. WILSON, Appellant, v. Nicholas ARMENAKIS, Superintendent, Oregon State

Penitentiary, Respondent.

94C-13225; CA A91088.

Court of Appeals of Oregon.

Submitted on Record and Briefs Sept. 6, 1996.

Decided Nov. 20, 1996.

David B. Kuhns filed the brief, for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Erika L. Hadlock, Assistant Attorney General, filed the brief for respondent.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Pursuant to a 1983 plea agreement, petitioner pled guilty to assault in the fourth degree. He brought this post-conviction proceeding, alleging that the trial court violated his constitutional rights to due process and equal protection by accepting his guilty plea because it was not knowingly, intelligently and voluntarily made. He also alleged that his trial counsel provided constitutionally inadequate assistance by failing to inform and advise him during his guilty plea. The post-conviction court denied relief.

On appeal, petitioner argues that the post-conviction court erred. Our review of a post-conviction proceeding is limited to errors of law and whether the facts found by the post-conviction court are supported by the record. Temple v. Zenon, 124 Or.App. 388, 393, 862 P.2d 585 (1993). The evidence at the post-conviction hearing, including the trial transcript and trial counsel's affidavit, supports the post-conviction court's findings that petitioner executed a plea petition that set out the rights that he was waiving, that trial counsel read the petition to petitioner before he entered his guilty plea ¹ and that, before accepting the plea, the trial court assured itself that petitioner's plea was knowing, voluntary and intelligent. The court did not err in denying post-conviction relief.

Petitioner also assigns error to the post-conviction court's imposition of sanctions pursuant to ORCP 17. ORCP 17 was amended by the 1995 legislature with an effective date of September 9, 1995. ² The amendments include the requirement that, when a court seeks to impose sanctions on its own motion, the court must direct the party or attorney to appear before the court to show cause why the sanctions should not be imposed. ORCP 17D(2).

Defendant concedes that the post-conviction court erred in awarding sanctions by failing to follow the procedure specified in the amended version of ORCP 17, because the court made its award after the amended version had taken effect. He notes that plaintiff did not raise the error at trial or on appeal, but asks that we remand the case to permit the trial court to reconsider its sanctions award if we treat the error as one that is apparent on the face of the record....