and Submitted January 16, 2018
review from the Court of Appeals. (CC CV141618; S.C. S064780)
Weber, O'Connor Weber LLC, Portland, argued the cause and
fled the brief for petitioner on review.
Christopher A. Perdue, Assistant Attorney General, Salem,
argued the cause and fled the brief for respondent on review.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
Summary: Petitioner was granted post-conviction relief after
the post-conviction court found that petitioner's trial
counsel was ineffective. The superintendent appealed that
judgment, and petitioner fled a cross-appeal. The Court of
Appeals dismissed petitioner's cross-appeal as untimely.
The Supreme Court granted review of that decision, but, while
petitioner's case was pending before the Court,
petitioner submitted his answering brief in the
superintendent's pending appeal, in which he raised as
cross-assignments of error the issues that he would have
raised in his cross-appeal. Held: Because
petitioner's cross-assignments of error are permitted
under ORAP 5.57(2), he can obtain the same relief that he
could have obtained if the Court of Appeals had not dismissed
his cross-appeal. Therefore, resolving the merits of
petitioner's claim in this court will no longer have a
practical effect on the right of the parties.
petition for review is dismissed as moot.
Or.App. 510] WALTERS, J.
allowed review in this case to determine whether the Court of
Appeals correctly dismissed petitioner's cross-appeal as
untimely. After we did so, petitioner filed his brief in the
Court of Appeals and included cross-assignments of error
seeking the same relief that he seeks in his cross-appeal.
For the reasons that follow, we conclude that
petitioner's cross-assignments of error are permitted by
ORAP 5.57(2) and that resolving the merits of the issue on
review in this court will no longer have a practical effect
on the rights of the parties. We therefore dismiss the
petition for review as moot.
a bench trial, petitioner was convicted of three crimes and
sentenced accordingly. After entry of judgment and an
unsuccessful appeal to the Court of Appeals, petitioner filed a
petition for post-conviction relief. Petitioner alleged one claim
of ineffective assistance of counsel, and, in that claim,
specified five instances in which his trial counsel allegedly
failed to exercise reasonable professional skill and
judgment. Petitioner sought an order reversing his
convictions and sentences. After a hearing, the
post-conviction court made oral findings. The court found
that, although three of petitioner's specifications were
without merit, two were well-taken. As a result, the court
stated, it would "overturn the convictions in order
[that] they be remanded back to the trial court." The
court then entered a judgment allowing the petition,
effectively setting aside petitioner's convictions and
remanding the case to the trial court for a new
Or.App. 511] Defendant (the superintendent) appealed the
post-conviction judgment, and petitioner filed a notice of
cross-appeal, raising issues on which he had not prevailed in
the post-conviction proceedings. The Court of Appeals
determined that petitioner's notice was untimely and
dismissed his cross-appeal for lack of jurisdiction.
Behrle v. Taylor, 283 Or.App. 629, 632, 389 P.3d 419
(2017). Petitioner sought review of the order of dismissal,
which this court allowed. Meanwhile, the superintendent's
appeal of the post-conviction judgment, Behrle v.
Taylor (A161724), continued in the Court of
Appeals. In his brief in that court, the
superintendent contended that the post-conviction court had
erred when it granted post-conviction relief based on two
specifications of ineffective assistance of counsel.
Petitioner filed an answering brief, which included
cross-assignments of error. In responding to the
superintendent's arguments, petitioner maintained that
the post-conviction court had properly granted
post-conviction relief based on those two specifications. In
his cross-assignments of error, petitioner argued that the
post-conviction court had erred when it denied
post-conviction relief based on three other specifications of
ineffective assistance of counsel.
petitioner filed his brief in the Court of Appeals, the
superintendent provided this court with notice of probable
mootness pursuant to ORAP 8.45. The superintendent informed us of
petitioner's cross-assignments of error and took the
position that ORAP 5.57(2) permitted them. Therefore, the
superintendent submitted, petitioner could obtain, by means
of cross-assignment of error, the same relief that he could
obtain by cross-appeal. The superintendent argued that
resolving the merits of petitioner's claim in this
court-that the Court of Appeals had erred in dismissing his
cross-appeal-would no longer have a practical effect on the
rights of the parties. Petitioner does not disagree, but he
notes that the Court of Appeals has yet to [362 Or.App. 512]
determine whether his cross-assignments of error are
permitted. We take up that issue.
cross-assignment of error is appropriate if two conditions
are met: (1) "[i]f, by challenging the trial court
ruling, the respondent does not seek to reverse or modify the
judgment on appeal"; and (2) "[i]f the relief
sought by the appellant were to be granted, respondent would
desire reversal or modification of an intermediate ruling of
the trial court." ORAP 5.57(2)(a), (b). We agree with
the parties that those conditions are met here.
first condition is met because petitioner is not seeking to
reverse or modify the post-conviction judgment. Petitioner
filed only one claim for post-conviction relief, and the
judgment on appeal is a judgment allowing that one
claim. Petitioner seeks to affirm that
judgment. In his cross-assignments of error,
petitioner challenges an aspect of the post-conviction
court's ruling, but not its ultimate conclusion.
Petitioner contends that the post-conviction court erred in
finding that three of his specifications of ineffective
assistance of counsel were without merit. An appellate court
decision agreeing with petitioner in that regard would
provide an independent basis for affirming the
post-conviction judgment. Thus, petitioner (respondent in the
Court of Appeals) "does not seek to reverse or
modify" the post-conviction judgment allowing his
petition. Rather, petitioner seeks affirmance of that
judgment on independent grounds and thus meets the condition
set out in ORAP 5.57(2)(a).
Or.App. 513] Petitioner also meets the condition set out in
ORAP 5.57(2)(b). On appeal to the Court of Appeals, the
superintendent seeks a determination that the post-conviction
court erred in finding that two specifications of inadequate
assistance of counsel were well-taken and entering a judgment
that effectively reverses petitioner's convictions. If
the superintendent were to obtain that relief from the Court
of Appeals, petitioner "would desire reversal * * * of
an intermediate ruling of the [post-conviction] court, "
because petitioner would want the Court of Appeals to reverse
the post-conviction court's ruling that three other
specifications of ineffective assistance of counsel were
without merit. Such a result would modify the trial
court's findings and provide an alternate, independent