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Truong v. Premo

Court of Appeals of Oregon

April 4, 2018

HIEU DOAN TRUONG, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Submitted October 25, 2016.

          Marion County Circuit Court 14C12534; Linda Louise Bergman, Senior Judge.

          Jed Peterson and O'Connor Weber LLP fled the opening brief for appellant. Hieu Doan Truong fled the supplemental brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Petitioner appeals from a judgment denying his petition for post-conviction relief. Petitioner assigns error to the post-conviction court's refusal to consider his pro se claims for relief under Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), and his request for substitute "suitable counsel" under ORS 138.590. Held: The post-conviction court erred, because petitioner's allegations that counsel had misled him regarding whether he would amend the petition to raise additional claims for relief required the court to consider whether those allegations warranted the appointment of substitute counsel. Because the post-conviction court has discretion whether to address petitioner's Church claims on remand, the Court of Appeals did not reach that issue.

         [291 Or.App. 165] DEHOOG, P. J.

         Petitioner appeals from a judgment denying his petition for post-conviction relief. We write only to address the assignments of error in petitioner's pro se supplemental brief, in which he argues that the post-conviction court erred when it refused to consider his pro se claims for relief under Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), and his request for "suitable counsel" under ORS 138.590.[1]We conclude that the court erred as a matter of law, because it based its decision solely on timeliness grounds and, as a result, failed to exercise its discretion regarding petitioner's suitable-counsel request. We reverse and remand for the post-conviction court to consider that request.

         We summarize the pertinent facts as taken from the record. Petitioner filed a pro se petition for post-conviction relief in which he alleged multiple theories of inadequate assistance of counsel. Petitioner also filed an affidavit of indigency under ORS 138.590, and the court appointed an attorney to represent petitioner. See ORS 138.590(4) (requiring court to appoint "suitable counsel" for financially eligible petitioners).

         Petitioner's appointed attorney filed an amended petition on his behalf but removed all of petitioner's claims, replacing them with two unrelated claims of inadequate assistance of counsel. Counsel sent petitioner a copy of the amended petition with instructions for petitioner to contact him if there were any other claims that petitioner wanted to include. Counsel advised petitioner that, if petitioner personally notified the post-conviction court of any additional claims, then the court would be "obligated to hear [those] claims under the ruling in Church v. Gladden, " but also told petitioner that counsel could file those claims on his behalf.[2] Petitioner responded with a list of claims that he had alleged in the original petition. He explained that [291 Or.App. 166] he preferred for counsel to raise the claims in the petition, because he believed that the process for notifying the court of those claims personally, under Church, was "insufficient to properly assert and litigate [the] claims." Petitioner also directed his attorney to either investigate his listed claims or "submit a Church motion along with a motion to provide suitable counsel under ORS 138.590."

         Petitioner and his attorney continued to discuss the omitted claims in a series of letters and conversations. Petitioner ultimately accepted counsel's recommendation that they omit the majority of his proposed claims, but was adamant that counsel pursue two of the claims, and suggested particular witnesses and lines of investigation for each claim. Petitioner again told counsel that he would prefer to raise those claims in the petition rather than through a Church notice, and again instructed counsel to either investigate those claims or to "submit a Church motion as well as a motion to examine the suitability of counsel under ORS 138.590."

         For his part, petitioner's attorney recited those options back to him by informing him that he had a choice: either file a Church notice himself or wait for counsel to amend the petition. As to one of petitioner's claims, counsel wrote in a November 2014 letter that he would add the claim to the petition if petitioner would provide a supporting affidavit. Somewhat contradictorily, counsel advised petitioner in the same letter to file a Church notice "immediately" if he had "any disagreement [with] any of the claims *** in [the] amended petition" and that the court would "hold a hearing on those claims." Immediately following that advice, however, counsel wrote, "If you would like to wait until the court decides whether to accept our new petition or [want] to file your Church notice now is completely up to you." Petitioner responded by providing counsel with the requested affidavit and followed that up with an affidavit supporting the second omitted claim, apparently also at counsel's request. Counsel cited the first affidavit in support of a motion for authorization to contact jurors from petitioner's criminal trial, which the court denied; the record does not disclose whether counsel investigated or otherwise acted on the second claim. [291 Or.App. 167] Counsel did not, however, move to amend the petition to add either claim.

         Petitioner's attorney submitted a trial memorandum to the court in January 2015, one month before the scheduled post-conviction hearing. When petitioner received a copy of the memorandum and noted that it discussed only the claims from the initial amended petition, petitioner wrote counsel to express his concern. Counsel responded, this time unequivocally, that petitioner should personally notify the court of the omitted claims:

"As I mentioned in my November *** letter to you, if you wish to bring any further claims in your case, according to Church v. Gladden or otherwise, you should notify the court immediately. Failure to notify the court will ...

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