Winstead v. State
Decision Date | 13 September 2017 |
Docket Number | A156458. |
Parties | Carol Denise WINSTEAD, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent. |
Court | Oregon Court of Appeals |
Jason Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP.
Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and James, Judge, and Duncan, Judge pro tempore.*
DUNCAN, J. pro tempore.
In this post-conviction case, the court granted summary judgment against petitioner on the ground that her claims of inadequate assistance of counsel were barred by ORS 138.510(3) because they were not filed within two years of her conviction. On appeal, petitioner argues that, viewed in the light most favorable to her, the record demonstrates that the grounds asserted in her petition "could not reasonably have been raised in the original or amended petition," ORS 138.510(3), thereby bringing them within the statutory exception to the two-year filing period. We agree with petitioner and therefore reverse and remand.
A belabored discussion of the background of this case would not benefit the bench, the bar, or the public. Suffice it to say that the facts, viewed in the light most favorable to petitioner, as the summary judgment posture of this case requires, see ORCP 47 C, establish that petitioner received inadequate assistance of counsel at various stages of her criminal proceedings, including appellate counsel's failure to file a timely notice of appeal after her conviction for theft was entered on April 8, 2011. Then, on August 14, 2012—still within two years of her conviction—petitioner initiated post-conviction proceedings, but not by filing a petition; instead, she apparently initiated the proceedings by filing an affidavit of indigency, and the court appointed counsel beforeshe had filed a pro sepetition for post-conviction relief.1 A later entry in the official case registry reflects that "attys advised court will file petition by 3/1/13," but no petition was filed by that date.
The post-conviction court agreed with the state and granted the motion.
On appeal, petitioner argues that the unique circumstances of this case—namely, that she was appointed counsel who failed to file a timely petition on her behalf—created a situation in which the grounds asserted in her late petition could not "reasonably have been raised in the original or amended petition." We agree.
As the Supreme Court explained in Verduzco v. State of Oregon , 357 Or. 553, 566, 355 P.3d 902 (2015), the relevant inquiry under the statutes governing timely and successive petitions is not whether (Emphases added.) See also id.at 571, 355 P.3d 902 ().
Here, the relevant facts and circumstances include the curious procedural posture of this case. The post-conviction scheme expressly contemplates that post-conviction counsel will be appointed afteran original petition has been filed by a pro sepetitioner. See ORS 138.590(2) ( ; ORS 138.590(4) (). Post-conviction counsel then has an opportunity to amend a pro sepetition that is defective in form or substance. See ORS 138.590(5) ( ).
In this case, for whatever reason, that process was not followed, and counsel was appointed without an original petition having been filed by petitioner. With that appointment of counsel, petitioner lost her ability to file pro sean original petition, as contemplated by the post-conviction scheme, and it was incumbent upon appointed counsel to file a timely petition. See ORS 9.320 (); Johnson v. Premo , 355 Or. 866, 877, 333 P.3d 288 (2014) ( ).
As described above, appointed counsel apparently represented to the court that a timely petition would be filed, but he then failed to do so. In that circumstance, counsel's failure cannot reasonably be attributed to petitioner for purposes of ORS 138.510(3), where the effect would be to deny her any meaningful opportunity for post-conviction review. Accord Church, 244 Or. at 312-13, 417 P.2d 993 ( ).
The court's reasoning in Church is particularly instructive. In Church, the petitioner brought a successive petition for post-conviction relief and argued that the grounds for relief "could not reasonably have been raised [in his earlier petition] because his court-appointed attorney failed and refused to do so, although requested to pursue such course of action by the petitioner." 244 Or. at 311, 417 P.2d 993. The court ultimately concluded that the petitioner had "not alleged sufficient reasons to escape the application of the res judicataprovision of ORS 138.550(3)," but it reached that conclusion because the petitioner had an opportunity to raise counsel's failures in the earlier proceeding, when those failures could easily be remedied:
Id.at 311-12, 417 P.2d 993.
Implicit in that holding was the view that grounds for relief would notbe barred by ORS 138.550(3) —i.e., they would fall within the exception for grounds that "could not reasonably have been raised in the original or amended petition"—where post-conviction counsel failed to raise the claims but the petitioner had alerted the post-conviction court of that failure at the earliest opportunity, to no avail. Indeed, the Supreme Court later recognized as much in Johnson, in the course of rejecting an argument that Church authorized hybrid representation:
" Church says no more than this: If a post-conviction petitioner's attorney fails to assert a ground for relief, the petitioner must bring that fact to the attention of the court to avoid the effect of ORS 138.550(3)."
Johnson, 355 Or. at 877, 333 P.3d 288 (emphasis added). See also Bogle v. State of Oregon , 284 Or.App. 882, 883, 395 P.3d 643 (2017)() ; Lopez v. Nooth , 287 Or.App. 731, 735, 403 P.3d 502 (2017) (discussing Church ).
Here, by contrast, petitioner had no meaningful opportunity to bring post-conviction counsel's failure to the attention of the court at an earlier time. It was reasonable for petitioner to assume that her counsel would meet the most basic of professional obligations—filing the petition within the two-year filing period—and by the time that petitioner's counsel failed to meet that obligation, it was too late for the type of contemporaneous objection contemplated in Church and Johnson.
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