and Submitted December 1, 2015
County Circuit Court CV132097; Daniel J. Hill, Judge.
L. Weber argued the cause for appellant. With him on the
brief was O'Connor Weber LLP.
Galli, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Anna M. Joyce, Solicitor General, and James Aaron,
Assistant Attorney General.
Sercombe, Presiding Judge, and Hadlock, Chief Judge, and
Tookey, Judge. [*]
HADLOCK, C. J.
was convicted of multiple crimes in 2006 and sentenced to a
lengthy period of incarceration. He initiated this
post-conviction proceeding in 2013 by filing a pro
se claim for post-conviction relief in which he raised a
single claim of ineffective assistance of trial counsel,
premised on several alleged deficiencies in representation.
The postconviction court dismissed that petition before
appointing counsel to represent petitioner, and petitioner
appeals. For the reasons set out below, we conclude that the
post-conviction judgment is not appealable. Accordingly, we
pro se petition for post-conviction relief alleged,
as noted, a single claim of ineffective assistance of trial
counsel, based on a list of seven specific ways in which
petitioner claimed that his lawyer performed deficiently. The
petition also includes an allegation that petitioner had
previously-and unsuccessfully-sought post-conviction relief
on at least some of the same convictions that form the basis
for his post-conviction claim in this case. Petitioner moved
for appointment of counsel to represent him in the
post-conviction proceeding. Without appointing counsel for
petitioner, the post-conviction court issued an order to show
cause why the petition should not be dismissed for being
time-barred and successive. Petitioner responded, largely
claiming that "several claims should have been
raised" in the earlier proceeding and that he wished to
"introduce new evidence."
post-conviction court then entered an order in which it ruled
that the case should be dismissed. In explaining its ruling,
the court used a preprinted or computer-generated form of
order in which it indicated that dismissal was
"because" of four listed reasons (each bullet point
below represents a box that the court checked on the order):
• "The Petition is an improper time-barred Petition
under ORS 138.510."
• "The Petition is a successive petition to
[another case] and the claims could reasonably have been or
were previously raised, and are prohibited under ORS
• "The Petition liberally construed fails to state
a claim upon which relief may be granted and may be dismissed
under ORS 138.525."
• "The Petition fails to meet the requirements of
ORS 138.570 and/or 138.580."
court subsequently entered a judgment dismissing the petition
without prejudice. The judgment, too, was created using a
form. It begins by stating that the "proceeding is
dismissed" and then sets out a list of possible reasons
for dismissal, each with a corresponding box that the court
may (or may not) check, followed by blank lines for
additional explanation. In this case, the court checked two
boxes, one indicating that the petition "is dismissed as
mer-itless" under ORS 138.525, and the second indicating
that dismissal is without ...