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Tolle v. Franke

Court of Appeals of Oregon

March 19, 2014

BENJAMIN ALLEN TOLLE, Petitioner-Appellant,
v.
STEVE FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent

Submitted: February 5, 2014.

Umatilla County Circuit Court. CV110522. Christopher R. Brauer, Judge.

James N. Varner filed the brief for appellant.

Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.

OPINION

[261 Or.App. 640] PER CURIAM

Petitioner appeals a judgment dismissing his amended petition for post-conviction relief. We write only to address petitioner's contention that the court erred in dismissing his claim that trial counsel was inadequate for failing to call certain witnesses and reject his remaining contentions without discussion. Petitioner assigns error to the post-conviction court's dismissal of that claim because petitioner failed to attach " [a]ffidavits, records or other documentary evidence supporting the allegations of the petition[,]" as required by ORS 138.580. The state concedes that the attached documentation satisfied the requirements of ORS 138.580, as explained in Ogle v. Nooth, 254 Or.App. 665, 298 P.3d 32, rev allowed, 353 Or. 747, 304 P.3d 38 (2013). Having reviewed the petition, we agree with the state and accept its concession that the claim should not have been dismissed on grounds that petitioner failed to attach sufficient documentation to the petition.

Reversed and remanded for further proceedings on petitioner's claim that he was denied adequate assistance of trial counsel because of the failure to call certain witnesses; otherwise affirmed.


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