CAMERINO GONZALEZ SANCHEZ, aka Camerino Sanchez-Gonzalez, Petitioner-Appellant,
STATE OF OREGON, Defendant-Respondent
Argued and Submitted March 7, 2014
Washington County Circuit Court C106640CV. Steven L. Price, Judge.
Jesse Wm. Barton argued the cause and filed the brief for appellant.
Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[272 Or.App. 227] NAKAMOTO, J.
Petitioner appeals a judgment denying his petition for post-conviction relief. Prior to his post-conviction hearing, the trial court issued trial management orders stating that petitioner's case would be scheduled for 15 minutes and that " [n]o live testimony will be permitted without prior court order." The court clarified that, " [i]n order to present live witnesses, a party must first file a motion to do so along with a supporting affidavit as to why live testimony is necessary." The court denied petitioner's motion requesting additional time and to call two witnesses. Later, the court denied petitioner's motion for reconsideration on the basis that petitioner had failed to establish that he could not present those witnesses' proposed testimony through deposition or affidavit. In other words, the court determined that the substance of the witnesses' testimony was such that it was not necessary for them to testify at the hearing because the same information could be relayed through an affidavit or deposition. As a result of that ruling, petitioner was not allowed to call those witnesses at his hearing. Instead, he submitted those witnesses' testimony through declarations. The trial court ultimately denied petitioner's petition in its entirety.
In a single assignment of error, petitioner " assigns error to the trial court's orders limiting the amount of time he would have to present his case, imposing preconditions on calling live witnesses, and transforming his post-conviction hearing into a summary judgment hearing." He argues that " the Oregon State Bar's Principles and Standards for Post-Conviction Relief Practitioners, statutes, rules of court, and constitutional provisions required the court to allow him a full and fair hearing on his claims, which includes allowing adequate time and to call live witnesses without having to meet the show-cause requirement the court imposed." He further argues that " the litigation restrictions the post-conviction court imposed effectively transformed petitioner's post-conviction hearing into a summary judgment proceeding," and that that " unauthorized * * * transformation established that[,] given the state of the record, the court improperly relied on documentary evidence to grant 'summary judgment' for defendant." We reject without discussion [272 Or.App. 228] petitioner's argument that the court transformed his hearing into a summary judgment proceeding. We limit our consideration to whether the court erred by limiting petitioner's time for his hearing and imposing a show-cause precondition on his ability to call live witnesses. For the reasons stated below, we conclude that, under the circumstances of this case, any error in imposing those limitations was harmless. Accordingly, we affirm.
I. STANDARD OF REVIEW
We review a trial court's regulation of the proceedings before it and its control over the presentation of evidence for abuse of discretion. See Biegler v. Kirby, 281 Or. 423, 427, 574 P.2d 1127 (1978) (" The conduct of trial is within the discretion of the trial court and an appellate court will not interfere absent an abuse of discretion." ). As the Supreme Court has explained, " [a] trial court's authority to exercise reasonable discretion to ensure that the trial is orderly and expeditious does not evaporate when the parties assert their constitutional rights during trial." State v. Rogers, 330 Or. 282, 301, 4 P.3d 1261 (2000) (citing State v. Langley, 314 Or. 247, 257-60, 839 P.2d 692 (1992), adh'd to on recons, 318 Or. 28, 861 P.2d 1012 (1993) (rulings that implicated defendant's rights to counsel and to fair trial reviewed for abuse of discretion), and State v. Engeman, 245 Or. 209, 211, 420 P.2d 389 (1966) (ruling that
implicated defendant's right to fair trial reviewed for abuse of discretion)). " Rather, a trial court is obliged to accommodate the exercise of all pertinent constitutional and statutory rights by all parties within the context of an orderly and expeditious trial." Id. Thus, we review whether the trial court abused its discretion when it limited the time for the hearing and required petitioner to establish prior to trial the necessity of calling his witnesses.
Petitioner was convicted of unlawful possession of cocaine, driving under the influence of intoxicants, and reckless driving, arising out of an incident in which he drove his car into a ditch. After petitioner had driven his car into the ditch, the police arrived. The car was partially in the ditch and partially in the roadway. As a result, the police [272 Or.App. 229] determined that the car needed to be towed. Before towing the car, police conducted an inventory search and discovered drugs. The police gave petitioner Miranda warnings in English, and petitioner proceeded to make incriminating statements. At his criminal trial, petitioner's trial counsel unsuccessfully moved to suppress evidence seized during the inventory search and petitioner's incriminating post- Miranda statements. We summarily affirmed petitioner's direct appeal.
Petitioner thereafter initiated this post-conviction action, claiming, among other things, that his trial counsel had provided him with constitutionally inadequate representation.
As relevant here, petitioner argued that his trial counsel had been constitutionally inadequate because, in seeking to suppress that evidence, (1) he had failed to argue that the inventory search of petitioner's car was invalid on the basis that the car was not a hazard and, therefore, did not need to be towed, and (2) he had failed to have petitioner--whose primary language is Spanish--tested for English proficiency to demonstrate that petitioner could not understand the Miranda warnings that the police gave him.
After petitioner had filed his petition, before trial, the court sent the parties a letter addressing some case management issues. The letter stated, in relevant part:
" We are making an effort to resolve all post conviction relief and habeas corpus cases within one year from the original filing. If a trial date is set, the trial will be scheduled for 15 minutes. No live testimony will be permitted without prior court order. Petitioner (if in custody) will appear by telephone absent a court order to the contrary. * * *" 
[272 Or.App. 230] Petitioner's counsel sent the court a letter stating that he intended to call " as many as three live witnesses" --petitioner, Matt Roloff, and Professor Mariana Valenzuela--and that he estimated that he would need 90 minutes to present the case. In response, the court sent the parties a follow-up letter describing the procedure that they would have to follow to obtain live testimony at the hearing. That letter provided, in relevant part:
" In order to present live witnesses, a party must first file a motion to do so along with a supporting affidavit as to why live testimony is necessary. I strongly encourage you to present evidence by way of affidavits and depositions. It is very unlikely that I will allow live testimony in the absence of attempts to present the evidence by ...