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Winstead v. State

Court of Appeals of Oregon

September 13, 2017

CAROL DENISE WINSTEAD, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted January 12, 2016

         Harney County Circuit Court 1208331CV Patricia A. Sullivan, Judge.

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

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before DeVore, Presiding Judge, and James, Judge, and Duncan, Judge pro tempore. [*]

          [287 Or. 738] Oregon's Post-Conviction Hearing Act contemplates that post-conviction counsel will be appointed after an original petition has been fled by a pro se petitioner. For whatever reason, that process was not followed in petitioner's case, and counsel was appointed without an original petition having been fled by petitioner. Petitioner's appointed counsel proceeded to file a petition for post-conviction relief more than two years after the date of petitioner's conviction, and the state moved for summary judgment on the ground that petitioner's post-conviction claims therefore were barred by ORS 138.510(3). The post-conviction court agreed and granted the state's motion. On appeal, petitioner argues that, viewed in the light most favorable to her, the record demonstrates that the grounds asserted in her petition "could not reasonably have been raised in the original or amended petition, " ORS 138.510(3), thereby bringing them within the statutory exception to the two-year fling period. Held: In the unique procedural posture of the case, and viewing the facts in the light most favorable to petitioner, her post-conviction claims fall within the escape clause of ORS 138.510(3) for claims that "could not reasonably have been raised in the original or amended petition." Once counsel was appointed, petitioner lost her ability to file pro se an original petition, as contemplated by the post-conviction scheme, and it was reasonable for petitioner to assume that her counsel would meet the most basic of professional obligations by fling a timely petition on her behalf.

          [287 Or. 739] DUNCAN, J. pro tempore

         In this post-conviction case, the court granted summary judgment against petitioner on the ground that her claims of inadequate assistance of counsel were barred by ORS 138.510(3) because they were not filed within two years of her conviction. On appeal, petitioner argues that, viewed in the light most favorable to her, the record demonstrates that the grounds asserted in her petition "could not reasonably have been raised in the original or amended petition, " ORS 138.510(3), thereby bringing them within the statutory exception to the two-year filing period. We agree with petitioner and therefore reverse and remand.

         A belabored discussion of the background of this case would not benefit the bench, the bar, or the public. Suffice it to say that the facts, viewed in the light most favorable to petitioner, as the summary judgment posture of this case requires, see ORCP 47 C, establish that petitioner received inadequate assistance of counsel at various stages of her criminal proceedings, including appellate counsel's failure to file a timely notice of appeal after her conviction for theft was entered on April 8, 2011. Then, on August 14, 2012-still within two years of her conviction- petitioner initiated post-conviction proceedings, but not by filing a petition; instead, she apparently initiated the proceedings by filing an affidavit of indigency, and the court appointed counsel before she had filed a pro se petition for post-conviction relief.[1] A later entry in the official case registry reflects that "attys advised court will file petition by 3/1/13, " but no petition was filed by that date.

         A petition for post-conviction relief was eventually filed by appointed counsel in May 2013, more than two years after the date of petitioner's conviction. The state, which is the named defendant in the case, moved for summary judgment on the ground that the claims asserted in the petition were untimely under ORS 138.510(3), which provides that a petition for post-conviction relief

         [287 Or. 740]"must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

"(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register."

         The post-conviction court agreed with the state and granted the motion.

         On appeal, petitioner argues that the unique circumstances of this case-namely, that she was appointed counsel who failed to file a timely petition on her behalf- created a situation in which the grounds asserted in her late petition could not ...


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