Zsarko v. Angelozzi

• Decision Date: 12 October 2016
• Docket Number: A159271
• Citation: 385 P.3d 1239,281 Or.App. 506
• Parties: James Nathaniel Dustin ZSARKO, Petitioner–Appellant, v. Rick ANGELOZZI, Superintendent, Columbia River Correctional Institution, Defendant–Respondent.
• Court: Oregon Court of Appeals

281 Or.App. 506

385 P.3d 1239

James Nathaniel Dustin ZSARKO, Petitioner–Appellant,

v. Rick ANGELOZZI, Superintendent,Columbia River Correctional Institution, Defendant–Respondent.

A159271

Court of Appeals of Oregon.

Submitted September 7, 2016.

October 12, 2016

Jed Peterson and O'Connor Weber LLP filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

Before Egan, Presiding Judge, and Lagesen, Judge, and Edmonds, Senior Judge.

LAGESEN, J.

Defendant, the Superintendent of the Columbia River Correctional Institution, moved to dismiss petitioner's petition for post-conviction relief under ORCP 21 A(9)¹ on the ground that it was untimely on its face under the two-year limitations period applicable to post-conviction proceedings, ORS 138.510(3). The post-conviction court agreed, and entered a judgment of dismissal. On appeal from that judgment, petitioner contends that the post-conviction court erroneously concluded that the limitations period ran from the date on which the trial court entered the judgment on his conviction, rather than from the date of the trial court's subsequent judgment revoking petitioner's probation. We conclude that the post-conviction court did not err and affirm.

We review for legal error the dismissal of a pleading as untimely pursuant to an ORCP 21 A(9) motion. Windorf v. Malco , 276 Or.App. 528, 531, 368 P.3d 60 (2016). "Our review * * * is limited to the face of the pleadings. In conducting that review, we assume the truth of all allegations in the [petition] and give [petitioner], as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations." Kelly v. Lessner , 224 Or.App. 31, 33, 197 P.3d 52 (2008). Consistent with that standard, we draw the facts from the petition, supplementing them with the pertinent procedural facts.

Petitioner was convicted of the unlawful delivery of methamphetamine in violation of ORS 875.490(2). The trial court sentenced him to probation and entered judgment on December 11, 2011. A few months later, the court found petitioner in violation of the terms of his probation, revoked his probation, and sentenced him to 62 months' incarceration. The court entered judgment on the probation revocation on March 1, 2012.

More than two years after the court entered judgment on the conviction, but less than two years after the court entered judgment on the probation revocation, petitioner filed a pro se petition for post-conviction relief. As authorized by ORS 138.590, petitioner filed an amended petition for post-conviction relief after counsel was appointed to represent him. The amended petition asserts nine grounds for relief. Each of those grounds for relief alleges that petitioner's "conviction was wrongfully obtained and is void" as a result of constitutional error in the proceedings that led to that conviction. None of the grounds for relief alleges that a constitutional error occurred in the probation revocation proceeding or otherwise challenges those proceedings.

The question before us is whether the petition was timely. The answer to that question is supplied by the text of ORS 138.510(3). It provides:

"A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

"(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

"(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.

"(c) If a petition for certiorari to the United States Supreme Court is filed, the later of:

"(A) The date of denial of certiorari, if the petition is denied; or

"(B) The date of entry of a final state court judgment following remand from the United States Supreme Court."

(Emphasis added.)

As the italicized wording of the provision indicates, absent appellate proceedings, the time for filing a petition for post-conviction relief generally runs from the date the judgment on the challenged conviction is entered in the register. Here, that date was December 11, 2011. The petition alleges that the conviction from which petitioner seeks relief is his conviction for unlawful delivery of methamphetamine, and that the judgment on that conviction was entered on December 11, 2011. The limitations period, therefore, began to run on December 11, 2011, and expired on December 11, 2013. The petition, which was filed after December 11, 2013, thus is untimely unless the allegations in the petition also would permit the determination that "the grounds for relief [asserted] could not reasonably have been raised" within that two-year period. See Hayward v. Premo , 281 Or.App. 113, 118, 383 P.3d 437 (2016) (explaining that where post-conviction petition is filed outside of two-year limitations period, petitioner must allege facts showing that asserted grounds for relief could not be raised timely). The petition's allegations would not permit that conclusion. As noted, each alleged ground for relief asserts a constitutional error in the proceedings leading up to the entry of judgment on petitioner's conviction, and the petition contains no allegations addressing why those grounds could not be asserted within the two-year window.

In arguing that the limitations period began to run on the date that the trial court entered the probation revocation judgment—a date that would make the petition timely—petitioner points out that we have a number of cases in which we have considered claims of constitutional error in the context of probation revocation proceedings, and argues that we should infer that the words "the judgment or order on the conviction" in ORS 138.510(3)(a) refer to "any judgment in the underlying proceeding," such that the limitations period began to run (or, at least, began to...