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Dillard v. Premo

Supreme Court of Oregon

October 19, 2017

CARVEL GORDON DILLARD, Petitioner on Review,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary Respondent on Review.

          Argued and submitted March 3, 2017, at Willamette College of Law, Salem, Oregon.

         On review from Court of Appeals No. (CC 10C22490; CA A156063;).[*]

          Jed Peterson, O'Connor Weber LLC, Portland, argued the cause and fled the brief for the petitioner on review.

          Erin K. Galli, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices. [**]

         [362 Or. 42] Case Summary: The post-conviction court dismissed petitioner's petition for relief as meritless under ORS 138.525(2) for failing to state a claim upon which post-conviction relief may be granted, but it did so without a hearing. Petitioner appealed that court's designation of his judgment as being "with prejudice, " arguing that a dismissal without a hearing must be "without prejudice." The Court of Appeals dismissed the appeal pursuant to ORS 138.525(3), which provides that a meritless petition is not appealable. Held: ORS 138.525(3) does not preclude an appellate court from correcting a post-conviction court's erroneous designation of a judgment entered without counsel or a hearing as being "with prejudice."

         The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

          [362 Or. 43]

          WALTERS, J.

         ORS 138.525 governs the dismissal of meritless post-conviction petitions. ORS 138.525(4) requires that a dismissal be "without prejudice" if a meritless petition is dismissed without a hearing. In this case, the post-conviction court failed to conduct a hearing, but nevertheless dismissed the case "with prejudice." Petitioner appealed the judgment to the Court of Appeals. In that court, defendant-who is the superintendent of the Oregon State Penitentiary-conceded that the post-conviction court had erred but contended that the appellate court did not have jurisdiction to correct the error because ORS 138.525(3) provides that a judgment dismissing a meritless petition is not appealable. The Court of Appeals agreed and dismissed the appeal. Dillard v. Premo, 276 Or.App. 65, 67, 366 P.3d 797 (2016). Petitioner now seeks review of that decision in this court.[1] We conclude that the legislature did not intend to preclude appellate correction of the post-conviction court's error. We reverse the decision of the Court of Appeals and remand to that court for further proceedings.

         Petitioner was charged with four counts of sexual abuse in the second degree and four counts of prostitution. The indictment alleged crimes against two victims. Petitioner was not represented by counsel at trial. A jury found petitioner not guilty of the counts involving one of the victims, but found petitioner guilty of two counts involving the other victim. Petitioner unsuccessfully pursued a direct appeal. State v. Dillard. 233 Or.App. 510, 226 P.3d 130, rev den, 348 Or. 461 (2010).

         Petitioner then filed a timely pro se petition for post-conviction relief. He alleged (1) prosecutorial misconduct that, he claimed, violated his federal rights to a fair trial and due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that could not reasonably have been raised and preserved before or during his trial proceedings; (2) trial court errors, including denial [362 Or. 44] of appointed counsel, that, he alleged, could not effectively have been raised and preserved during the trial proceedings; (3) ineffective assistance of appellate counsel; and (4) actual innocence. Defendant filed a motion pursuant to ORCP 21 A(8) to dismiss the petition for failure to state ultimate facts sufficient to constitute post-conviction claims. Defendant contended that petitioner's 36-page handwritten petition identified the "facts of the case" but made no cognizable legal claims; that petitioner "was aware" of the facts that he alleged and reasonably could have litigated them at the time of trial; that his claims of inadequate assistance of appellate counsel stated only what counsel had failed to do and not "ultimate facts, " and did not articulate how the failures prejudiced petitioner; and that actual innocence is not a claim for relief under Oregon law.

         Petitioner was represented by counsel at that time, and, although the pro se petition at issue requested a hearing, counsel did not request a hearing on defendant's motion, and, as defendant recognizes, the post-conviction court did not grant a hearing. Instead, the court found defendant's arguments persuasive, adopted them, and granted defendant's motion. Subsequently, the court entered a general judgment dismissing the action "with prejudice." As defendant concedes, dismissal of the action "with prejudice" was error. ORS 138.525(4). The question before us is whether, as defendant argues, ORS 138.525(3) bars an appellate court from correcting that error.

         ORS 138.525 provides:

"(1) The court may, on its own motion or on the motion of the defendant, enter a judgment denying a meritless petition brought under ORS 138.510 to 138.680.
"(2) As used in this section, 'meritless petition' means one that, when liberally construed, fails to state a claim upon which ...

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