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State v. Perez

Court of Appeals of Oregon

March 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MANUEL PEREZ, Defendant-Appellant.

          Multnomah County Circuit Court 960633656; Charles B. Guinasso, Judge pro tempore.

         On appellant's petition for reconsideration fled September 22, 2017, and respondent's response fled November 21, 2017. Appellate Commissioner order of dismissal fled August 18, 2017.

          Ernest G. Lannet, Chief Defender, and Joshua B. Crowther, Chief Deputy Defender, Criminal Appellate Section, Offce of Public Defense Services, for petition.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, for response.

          Before DeVore, Presiding Judge, and James, Judge.

         Case Summary: Defendant petitions for reconsideration of this court's order by the Appellate Commissioner that dismissed, as untimely fled, his appeal of a judgment of conviction. He argues that a judgment of a post-conviction relief, entered on September 11, 2012, allowed him to file a late appeal of the judgment of conviction and did so without limiting the time in which to file the appeal. Held: The Court of Appeals allowed reconsideration and determined that the effect of the post-conviction relief (PCR) was to restore the original time in which to file a notice of appeal from the judgment of conviction. Accordingly, the statutory 30-day period in which to file a notice of appeal, provided by ORS 138.071(1), had elapsed by the time defendant fled his notice of appeal-nearly five years after the PCR judgment that allowed a late appeal.

         Reconsideration allowed; previous order adhered to.

          [290 Or.App. 610]DeVORE, P. J.

         Defendant petitions for reconsideration of this court's order by the Appellate Commissioner that dismissed, as untimely filed, his appeal of a judgment of conviction. He argues that a judgment of post-conviction relief, entered on September 11, 2012, allowed him to file a late appeal of the judgment of conviction and did so without limiting the time in which to file the appeal. We allow reconsideration and, for the reasons we explain, determine that the effect of postconviction relief (PCR) was to restore the original time in which to file a notice of appeal from the judgment of conviction. We conclude that the statutory 30-day period in which to file a notice of appeal, provided by ORS 138.071(1), had elapsed by the time defendant filed his notice of appeal- nearly five years after the PCR judgment that allowed a late appeal. On reconsideration, we adhere to the Appellate Commissioner's order dismissing defendant's appeal.

         The relevant facts are procedural and uncontested. To minimize confusion about parties when describing several proceedings, we refer to defendant throughout this narrative as "defendant" even when he was the petitioner in PCR proceedings. In those proceedings, we refer to the responding party as the superintendent.

         In 1997, defendant was convicted of one count of first-degree robbery and two counts of second-degree assault and sentenced to a total of 266 months' imprisonment as well as post-prison supervision and other conditions.

         In 2011, defendant filed a petition for post-conviction relief in which he alleged that his attorneys had provided constitutionally inadequate representation in trial-related proceedings and thereafter when failing to file a notice of appeal. Initially, in October 2011, the PCR court entered a judgment granting two forms of relief: ordering a new trial and allowing defendant to file a delayed appeal from the judgment of conviction. Defendant did not then promptly file an appeal from the judgment of conviction. The record does not reflect whether defendant preferred to rely on the relief that ordered a new trial of the criminal case rather than pursue what might have seemed then to be an unnecessary delayed appeal.

          [290 Or.App. 611] On September 11, 2012, the PCR court granted the superintendent's motion to vacate the 2011 PCR judgment and enter a second PCR judgment resolving the trial-related allegations in favor of the superintendent while again granting post-conviction relief for a delayed appeal of the underlying criminal judgment of conviction. The PCR judgment noted that the superintendent had agreed that defendant's attorneys "had missed the filing deadline, " so defendant was "entitled to a delayed appeal." Defendant did not then promptly file a notice of appeal from that judgment of conviction.

         Instead, defendant appealed from the second PCR judgment, arguing that the PCR court erred in granting the superintendent relief and in vacating the first PCR judgment. On appeal, defendant did not dispute the favorable part of the second PCR judgment that had allowed a delayed appeal from the criminal judgment. This court affirmed that PCR judgment without opinion in April 2015 and issued an appellate judgment in September. Perez v. Premo,270 Or.App. 599, 351 P.3d ...


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