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Ogle v. Nooth

Court of Appeals of Oregon

June 13, 2018

KEITH KENDON OGLE, Petitioner-Respondent,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Appellant.

          Argued and submitted March 21, 2017

          Malheur County Circuit Court 10108394P; William M. Horner, Senior Judge.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Jason Weber argued the cause for respondent. With him on the brief was O'Connor Weber LLC.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Defendant, the superintendent, appeals a judgment granting post-conviction relief to petitioner, arguing that the post-conviction court erred in granting relief on a basis that the petitioner did not allege in his amended petition for relief. Petitioner alleged that he received inadequate assistance of counsel based on counsel's failure to employ an investigator "to investigate the charges against [petitioner] and call[ ] the relevant witnesses to testify on his behalf." The court granted the petition for relief, concluding that petitioner received inadequate assistance of counsel based on counsel's failure to employ an investigator to contact a witness who had testified at trial. Held: The post-conviction court erred. A post-conviction court may not grant relief on a basis not alleged in the original or amended petition. Here, the ground on which the court granted relief did not fall within the scope of the alleged basis for relief in the petition, which required different proof and a different legal analysis.

         Reversed.

         [292 Or.App. 388] DEHOOG, P. J.

         Defendant (the superintendent) appeals a judgment granting post-conviction relief to petitioner, [1] arguing that the post-conviction court erred in granting relief on a basis that petitioner did not allege in his amended petition for relief. We agree with the superintendent and reverse.

         We begin by briefly reviewing the statutes governing post-conviction relief. To initiate post-conviction proceedings, a petitioner must file a petition for relief "set [ting] forth specifically the grounds upon which relief is claimed and *** stat[ing] clearly the relief desired." ORS 138.580. Upon receiving the defendant's response to the petition, the court must hold a hearing "on the issues raised." ORS 138.620(1). "If the petition states a ground for relief, the court shall decide the issues raised * * *. The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2). If the petitioner satisfies that burden and thereby establishes one or more of the grounds for relief set forth in ORS 138.530(1), the post-conviction court must grant relief.

         Collectively, those statutes limit post-conviction relief to "only * * * claims that actually have been alleged in the petition or amended petition." Bowen v. Johnson, 166 Or.App. 89, 93, 999 P.2d 1159, rev den, 330 Or. 553 (2000). As a result, a post-conviction court errs if it grants relief on a basis that the petitioner did not allege in the operative petition. See, e.g., Leyva-Grave-De-Peralta v. Blacketter, 232 Or.App. 441, 448, 223 P.3d 411 (2009), rev den, 348 Or. 114 (2010).

         Thus, this case turns on what it means, under our case law, for a claim "actually [to] have been alleged in the petition or amended petition." Bowen, 166 Or.App. at 93. That is, we must determine whether, as petitioner maintains, the allegations in the petition here encompass the basis on which the post-conviction court granted relief, or [292 Or.App. 389] rather, as the superintendent contends, the court impermissibly granted relief on a basis that the allegations did not encompass. In making that determination, we review the post-conviction court's grant of relief for legal error, Abbott u. Baldwin, 178 Or.App. 289, 291, 36 P.3d 516 (2001), rev den, 334 Or. 75, cert den, 537 U.S. 901 (2002), and accept the court's findings of historical fact if they are supported by evidence in the record, Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015).

         In petitioner's underlying trial, a jury convicted him of assault in the second degree, ORS 163.175, among other offenses. In his amended petition for post-conviction relief, petitioner alleged that he had received inadequate and ineffective assistance of trial counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Specifically, petitioner alleged that his trial attorney performed deficiently in failing to "employ [] an investigator to investigate the ...


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