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Ogle v. Nooth

Supreme Court of Oregon, En Banc

June 12, 2014

KEITH KENDON OGLE, SR., Respondent on Review,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Petitioner on Review

Argued and Submitted November 4, 2013.

Page 573

[Copyrighted Material Omitted]

Page 574

CC 10108394P; CA A148493. On review from the Court of Appeals[*].

Ryan P. Kahn, Assistant Attorney General, DOJ, Salem, argued the case and filed the briefs for the petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

James N. Varner, Portland, argued the case and filed the briefs for the respondent on review.

Kristin A. Carveth, Office of Public Defense Services, Salem, filed the brief for amicus curiae Office of Public Defense Services.

Ryan T. O'Connor, O'Connor Weber, Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyer's Association.

Kendra M. Matthews, Ransom Blackman, LLP, Portland, filed the brief for amicus curiae American Civil Liberties Union of Oregon, Inc. With her on the brief were Megan E. McVicar and Kevin Diaz.

OPINION

[355 Or. 572] WALTERS, J.

Page 575

This case requires us to interpret a provision of the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680. ORS 138.580 requires that a petitioner seeking relief under that act attach to the petition " [a]ffidavits, records or other documentary evidence supporting the allegations of the petition * * *." We conclude that that statute requires a petitioner to attach materials, including the petitioner's own averments of fact, that address each element of each asserted ground for relief and that, if presumed true, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief on that ground.

In this case, the post-conviction court granted the state's motion to dismiss, concluding that the materials that petitioner had attached to his petition were insufficient to meet the statutory requirement. The trial court entered a judgment of dismissal. Petitioner appealed, and the Court of Appeals reversed. Ogle v. Nooth, 254 Or.App. 665, 672-75, 298 P.3d 32 (2013). For the reasons explained below, we conclude that petitioner met the attachment requirement of ORS 138.580 with respect to his first ground for relief but not with respect to his second, third, and fourth grounds for relief. We affirm in part and reverse in part the decision of the Court of Appeals and remand the case to the post-conviction court for further proceedings.

BACKGROUND

The pertinent facts are primarily procedural. In October 2009, a jury found petitioner guilty of one count of second-degree assault constituting domestic violence, one count of possession of methamphetamine, and two counts of endangering the welfare of a minor. The assault conviction arose from an incident in which petitioner struck the victim and fractured her jaw. The trial court entered a judgment of conviction and sentenced defendant to 76 months in prison and 36 months of post-prison supervision.

On October 18, 2010, petitioner filed a pro se petition for post-conviction relief.[1] The post-conviction court appointed [355 Or. 573] counsel for petitioner. ORS 138.590(4). On February 18, 2011, petitioner's counsel filed an amended petition for post-conviction relief, in which petitioner alleged that he had been denied effective assistance of counsel in various respects, in violation of Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, petitioner alleged that his criminal trial counsel had been ineffective in failing to meet with and prepare a witness, Parker, who was present during the incident and was interviewed by the police after petitioner's arrest; in failing adequately to " investigate" the victim's hospital records; in failing to offer the victim's medical records into evidence; and in failing adequately to cross-examine the victim's treatment provider. Petitioner attached to the amended petition the indictment, judgment, and trial transcript from his criminal trial.

Citing ORCP 21 A(8), the state filed a motion to dismiss the petition on two grounds: failure to state a claim, and failure to comply with the attachment requirement of ORS 138.580. In regard to the latter, the state argued that petitioner was required to attach to his petition documentary evidence sufficient to constitute a prima facie case on each of his claims of ineffective assistance. Specifically, the state argued that petitioner's first claim required that he attach an affidavit from Parker averring in what way she would have testified differently if trial counsel had met with her. The state also argued that petitioner's second and third claims required that he attach the victim's medical records. Finally, it argued that his fourth claim required that he attach a document

Page 576

setting out the victim's treatment provider's answers to the questions that, according to petitioner, his trial counsel should have asked or, alternatively, an explanation of the steps that petitioner was taking to obtain those answers.

In response to the state's motion, petitioner submitted two additional documents. The first--petitioner's Exhibit 4--was an affidavit in which petitioner averred that, " [i]n [355 Or. 574] the police reports," Parker had given a " chronological statement" of the events on which the charges were based and that, if trial counsel had met with her and reviewed that statement, trial counsel could have elicited testimony that supported petitioner's defense of self-defense. In the same affidavit, petitioner also averred that the victim's X-rays and other medical records raised questions about the victim's injuries that would have been beneficial to his defense and again asserted that trial counsel's cross-examination of the victim's treatment provider was ineffective in that regard. Petitioner's second submission--Exhibit 5--was an affidavit relating to his claim that trial counsel had been ineffective in regard to the testimony of Parker. Petitioner averred that the victim's and Parker's statements to the police supported his claim of self-defense; he also set out lists of questions that petitioner thought that his trial counsel should have asked the victim and Parker, respectively, and their hypothetical answers.

The post-conviction court held a hearing on the state's motion to dismiss. At the conclusion of the hearing, the post-conviction court granted the state's motion to dismiss, concluding that petitioner had failed to comply with the attachment requirement of ORS 138.580.

Petitioner appealed. The Court of Appeals reversed and remanded, concluding that petitioner's submissions met the attachment requirement in ORS 138.580. The court first considered the meaning of the phrase " documentary evidence." The court looked to the current plain and legal meanings of the term " evidence" and the fact that a related statute, ORS 138.620(2), sets out procedures for the hearing on a petition and requires submission of " competent evidence" --which, the court noted, is a synonym for " admissible evidence." The court concluded that the legislature did not intend the phrase " documentary evidence" to require a post-conviction petitioner to attach admissible evidence. Ogle, 254 Or.App. at 670-71. The court concluded instead that the phrase " documentary evidence" in ORS 138.580 " means written documents that are submitted to the post-conviction court that tend to prove or disprove the existence of an alleged fact." Id. at 671.

[355 Or. 575] The court also considered the meaning of the phrase " supporting the allegations of the petition." Id. The court determined that the ordinary meaning of the term " support" is " to serve as verification, corroboration, or substantiation of" and that the legislature's use of that term indicated that a post-conviction petitioner was not required to attach materials conclusively demonstrating, proving, or establishing an allegation. Id. (citing to Webster's Second New Int'l Dictionary (unabridged ed 1959)). Rather, ORS 138.580 requires that a petitioner attach documentary evidence that " verifies, corroborates, or substantiates the assertions that the petitioner has undertaken to prove." Id.

Applying its interpretations to the materials attached to petitioner's petition, the Court of Appeals determined that the materials were sufficient as to each of his four claims of ineffective assistance. Specifically, the court determined that petitioner's affidavit in Exhibit 4 supported his claim that his criminal trial counsel was ineffective by failing to meet with a defense witness before trial by averring that, if counsel had met with the witness, she would have testified about the relevant events in chronological order and thereby aided his defense of self-defense. The court rejected the state's argument that petitioner was required to submit evidence demonstrating that trial counsel did not meet with the witness and an affidavit from the witness explaining how she would have testified differently if counsel had done so. 254 Or.App. at 673. The court also rejected the state's argument that petitioner was required to submit the victim's actual medical records, concluding that his averments about those records were sufficient to

Page 577

support his second and third claims of ineffective assistance. Id. Finally, the court determined that the trial transcript and petitioner's affidavit were sufficient to support his fourth claim, relating to his trial counsel's purported failure adequately to cross-examine the victim's treatment provider. Id. at 673-74. The court concluded that, by setting out the factual and legal theories underlying his claims and attaching his affidavits in support of those theories, petitioner had made a sufficient showing for him to be allowed to proceed through the discovery process and to a hearing. Id. at 674.

[355 Or. 576] On review in this court, the parties do not dispute whether the attachment requirement of ORS 138.580 is mandatory. The statute uses the word " shall," and, in 1993, the legislature amended the statute to eliminate an exception to the attachment requirement that allowed petitioners to explain why they were unable to attach materials to support their claims. Instead, the parties raise two interpretive questions about the required attachments. The first is the substantive content that the attachments must include. The second is the degree of reliability that the attachments must demonstrate.

As to the first, the state argues that the materials that a petitioner attaches must be sufficiently probative to permit a court to rule in his or her favor as to each of the allegations of the petition. The state refers to that " amount" of evidence as " prima facie" evidence, or sufficient evidence to submit the case to a finder of fact. Petitioner responds that ORS 138.580 does not require a petitioner to attach materials that are sufficient to prove each of his allegations. Petitioner argues that, consistently with the statutory scheme, a petitioner is entitled, after filing his or her petition, to " pursue the discovery process" and proceed to a hearing where he or she may present additional evidence pertaining to the allegations, as provided in ORS 138.620.

As to reliability, the state no longer argues (as it did in the Court of Appeals) that ORS 138.580 requires the attachment of admissible evidence. Instead, it argues, consistently with the text, context, and legislative history of the PCHA, that ORS 138.580 requires a post-conviction petitioner to support the allegations in his or her petition with evidence that is highly " reliable and trustworthy." The state argues that it therefore is insufficient for a petitioner to attach merely his or her own affidavit including " speculative" averments as to criminal trial counsel's actions or the testimony that a witness would have given and the possible effect of those actions or that evidence on the outcome of the trial. Petitioner argues in turn that ORS 138.580 permits the attachment of any affidavit, record or document--including an affidavit from the petitioner stating the facts as the petitioner understands them--that supports the allegations of the petition.

[355 Or. 577] ANALYSIS

In enacting the PCHA, the 1959 Legislative Assembly " both created a right to post-conviction relief and established a comprehensive set of procedures for resolving post-conviction claims." Ware v. Hall, 342 Or. 444, 449, 154 P.3d 118 (2007). Those procedures remain substantially the same today,[2] and the Court of Appeals succinctly described them as follows:

" First, a petitioner files a petition. ORS 138.580. Next, the defendant must file a response within 30 days after the docketing of the petition. ORS 138.610. If the petition states a ground for relief--that is, if it is not subject to dismissal as a meritless petition under ORS 138.525--the court holds a hearing. ORS 138.620. At the hearing, the court 'may receive proof by affidavits, depositions, oral testimony or other competent evidence.' ORS 138.620(2)."

Ogle, 254 Or.App. at 675. The Court of Appeals noted that the state was not arguing that the post-conviction court had dismissed petitioner's petition as " meritless" under ...


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