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Lujan v. Myrick

Court of Appeals of Oregon

November 15, 2017

MICHAEL A. LUJAN, Petitioner-Appellant,
v.
John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Argued and submitted August 29, 2017

         Umatilla County Circuit Court CV140794 Rick J. McCormick, Senior Judge.

          Kenneth A. Kreuscher argued the cause and fled the briefs for appellant.

          Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Petitioner appeals a post-conviction judgment that granted him limited relief on some of his claims by ordering that the judgment revoking his probation be amended to allow for Alternative Incarceration Programs (AIP) during the imposed 72-month imprisonment sentence. He argues that the post-conviction court erred because AIP eligibility is prohibited for the crime for which he was sentenced (second-degree robbery) and that, consequently, the relief granted has not mitigated the prejudice he suffered. On appeal, he asks the Court of Appeals to reverse the post-conviction judgment and vacate his underlying convictions by allowing him to withdraw his guilty plea or, alternatively, to grant "such relief as may be proper and just." ORS 138.520. The superintendent concedes that the post-conviction court erred but asserts that vacating petitioner's convictions is not appropriate because "proper and just" relief can be accomplished by means other than the one urged by petitioner. Held: The [288 Or.App. 764] superintendent's concession is accepted and the appropriate disposition is to remand to the post-conviction court to fashion the appropriate relief. Reversed and remanded with instructions for post-conviction court to grant petitioner relief on Claims 3, 5, and 6; otherwise affirmed.

         [288 Or.App. 765] ORTEGA, P. J.

         In this post-conviction case, petitioner appeals a judgment that granted him limited relief on some of his claims by ordering that the judgment revoking his probation be amended to allow for Alternative Incarceration Programs (AIP) during the imposed 72-month imprisonment sentence. He argues that the post-conviction court erred because AIP eligibility is prohibited for the crime for which he was sentenced (second-degree robbery) and that, consequently, the relief granted has not mitigated the prejudice he suffered. On appeal, he asks us to reverse the post-conviction judgment and vacate his underlying convictions by allowing him to withdraw his guilty plea or, alternatively, to grant "such relief as may be proper and just." ORS 138.520.[1] The superintendent of the correctional institution where petitioner is incarcerated (the defendant in the post-conviction proceeding) concedes that the post-conviction court erred but asserts that vacating petitioner's convictions is not appropriate because "proper and just" relief can be accomplished by means other than the one urged by petitioner. We accept the superintendent's concession and conclude that the appropriate disposition is to remand to the post-conviction court to fashion the appropriate relief.[2]

         Petitioner pleaded guilty to one count each of first-degree burglary and second-degree robbery. The sentencing court imposed five months' imprisonment and 36 months' supervised probation with the additional provision that, if petitioner's sentence were revoked, he would be sentenced to 72 months' imprisonment. During the plea and sentencing hearing, the state represented that petitioner would be eligible for Alternative Incarceration Programs (AIP) if probation were revoked. Petitioner later violated the terms of his probation and his probation was revoked. The court revoking [288 Or.App. 766] petitioner's probation, however, sentenced petitioner to 72 months' imprisonment on the first-degree burglary conviction, concurrent with the robbery sentence, without eligibility for AIR

         Petitioner sought post-conviction relief, alleging, as relevant to his appeal, that his probation-revocation counsel provided inadequate assistance at the revocation hearing (Claim 3), that the revocation judgment that did not provide for AIP was a breach of the plea agreement (Claim 5), and that his guilty plea was not a knowing and intelligent decision because he understood that he would be eligible for AIP at the plea hearing (Claim 6). During the post-conviction proceedings, the superintendent conceded that petitioner was entitled to relief on Claims 3, 5, and 6. The superintendent suggested to the post-conviction court that the proper relief was to amend the judgment to make petitioner eligible for AIP but not allow petitioner to withdraw his plea. The post-conviction court accepted the superintendent's concession and, contrary to petitioner's request to withdraw the plea, amended the probation-revocation judgment to read:

"The defendant may be considered by the executing or releasing authority for any form of reduction in sentence, temporary leave from custody, work release, or program of conditional or supervised release authorized by law for which the defendant is otherwise eligible at the time of sentencing. The defendant may be considered by the executing or releasing authority for any form of alternative incarceration program."

(Underscoring and boldface in judgment.)

         As noted, petitioner asserts on appeal that the postconviction court erred because ordering the amendment of the probation revocation judgment to allow for AIP did not provide him with relief. That is, he contends that the judgment as amended is unlawful and will not be given effect by the Department of Corrections (the department).[3] That is because, under ORS 421.508 and OAR 291-062-0130(3), the department is responsible for determining which inmates [288 Or.App. 767] are eligible to participate in AIR Under OAR 291-062-0130(3), for crimes committed on or after January 1, 2009, an inmate is not eligible for AIP if the sentence is for a crime listed in ORS 137.700. Second-degree robbery, ORS 164.405, is one of the crimes listed in ORS 137.700. In petitioner's view, under ORS 421.508 and OAR 291-062-0130(3), the department will not give effect to the amendment ordered by the post-conviction court. Consequently, petitioner asks us to reverse the post-conviction judgment and his underlying convictions by allowing him to withdraw his guilty plea or, alternatively, grant "such relief as may be proper and just." ORS 138.520.

         The superintendent concedes that the relief the post-conviction court ordered is deficient and that we should remand to the post-conviction court, but disagrees that the proper remedy is to allow petitioner to withdraw his guilty plea and have his convictions vacated. The superintendent's view is that petitioner's requested relief conflicts with the approach taken by the Supreme Court in Hinton v. Hill,342 Or. 222, 149 P.3d 1205 (2006). In Hinton, the petitioner entered a plea to six counts of sexual abuse with the understanding that her sentence would not be longer than 226 months' incarceration. Id. at 224. The signed plea petition stated that the maximum period of incarceration to which petitioner could be sentenced was 226 months despite the fact that the maximum lawful sentence was 496 months. After being sentenced to 366 months of incarceration, the petitioner sought post-conviction relief, claiming constitutionally inadequate and ineffective assistance of counsel because her attorney had failed to inform her correctly about the maximum possible sentence under her plea agreement. There was no dispute that the petitioner was entitled to post-conviction relief, but there was a dispute as to whether "the post-conviction court may cure the violation of petitioner's constitutional rights with a remedy other than vacating petitioner's no contest pleas." Id. at 226. The court rejected the petitioner's contention that she should be placed in the position that she was in before she entered the flawed plea. Rather, the court reasoned that under ORS 138.520, which provides that a post-conviction court may grant relief by "release, new trial, modification of sentence, and such [288 Or.App. 768] other relief as may be proper and just" the ...


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