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Cox v. Persson

Court of Appeals of Oregon

January 18, 2018

JENNIFER ANN COX, Petitioner-Appellant,
v.
Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

          Submitted November 21, 2017

         Washington County Circuit Court C100159CV Linda Louise Bergman, Senior Judge.

          Jed Peterson and O'Connor Weber LLC fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Petitioner appeals the post-conviction court's denial of her petition for post-conviction relief, assigning error to the denial of her request to reopen the record based on the court's conclusion that it lacked authority to do so, following a remand from the Court of Appeals in Cox v. Howton, 268 Or.App. 840, 343 P.3d 677 (2015). Petitioner argues that the post-conviction court's ruling was based on an overly narrow understanding of the scope of the remand. Held: The only issue that was to be addressed on remand was the prejudice, if any, resulting from the previously adjudicated deficiencies in trial counsel's performance; nothing in the record compelled the post-conviction court to reopen the record. However, the scope on remand was not as narrow as the post-conviction court viewed it; a trial court generally has the discretionary authority to reopen a case on remand or otherwise allow for presentation of additional evidence.

         Vacated and remanded.

         [289 Or.App. 826] LAGESEN, P. J.

         This post-conviction case is before us for the second time. See Cox v. Howton, 268 Or.App. 840, 343 P.3d 677 (2015). Following our remand, the post-conviction court denied petitioner's petition for post-conviction relief after rejecting petitioner's request to reopen the record to submit additional evidence. The post-conviction court did so based on its conclusion that it lacked authority to take additional evidence on remand. Petitioner appeals, assigning error to the denial of her request to reopen the record. She contends that the court's ruling was based on an overly narrow understanding of the scope of the remand. We agree and, therefore, vacate and remand for the post-conviction court to make a discretionary decision whether to permit the expansion of the record.

         Petitioner seeks relief from convictions, pursuant to guilty pleas, for second-degree assault, strangulation, and assaulting a public safety officer. See id. at 841. Originally, the post-conviction court granted relief. Id. Defendant, the superintendent of the Coffee Creek Correctional Facility, appealed. Id. at 842. The superintendent did not challenge the post-conviction court's conclusion that petitioner's trial counsel performed deficiently, but argued that the court erred in determining that counsel's deficient performance prejudiced petitioner. Id. We concluded that the post-conviction court applied the wrong legal standard in assessing prejudice; we then articulated the correct legal standard and reversed and remanded "to the post-conviction court for further proceedings consistent with this opinion." Id. at 842-43. Our disposition tag line stated "Reversed and remanded."

         On remand, petitioner sought to introduce additional evidence relevant to the prejudice assessment. The post-conviction court denied that request, concluding that this court had not "sent it back for any new testimony, " but, instead, "sent it back for another legal argument on the issue of prejudice and for a ruling using the correct legal standard." Then, applying the correct legal standard for assessing prejudice, the court denied relief. Petitioner has appealed, contending that the post-conviction court misinterpreted the scope of the remand. The scope of a remand [289 Or.App. 827] is a question of law, reviewed for legal error. Allen v. Premo, 251 Or.App. 682, 685, 284 P.3d 1199 (2012).

         As noted, petitioner challenges the post-conviction court's denial of her request to reopen the record to submit additional evidence. Relying on Allen, petitioner asserts that our tag line in the first appeal means that the case was returned to its pretrial posture on remand:

"Generally speaking, when our tagline specifies, in toto, 'Reversed and remanded, ' the 'reversed' part of the tagline negates the appealed judgment or order and the 'remanded' part sends the case back to the lower tribunal as though the original proceeding did not occur. There may be exceptions, such as when something in the text of the opinion itself clearly indicates that the remand is partial. Here, nothing about our opinion in [the first appeal] indicated that it was not 'completely remanded.'"

Id. at 686. According to petitioner, this means that petitioner "was free to offer admissible evidence, such as her testimony." The superintendent responds that this case represents one of the "exceptions" noted in Allen because our prior opinion is clear that the remand was to address prejudice only and, thus, the ...


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