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Corona v. Amsberry

Court of Appeals of Oregon

March 22, 2017

SIMON CORONA, Petitioner-Appellant,
v.
Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

          Argued and Submitted December 1, 2015

         Umatilla County Circuit Court CV132097; Daniel J. Hill, Judge.

          Jason L. Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP.

          Erin 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.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

          HADLOCK, C. J.

         Petitioner 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 dismiss.

         Petitioner's 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."

         The 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 138.550."
• "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."

         The 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 ...


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