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Middleton v. Premo

Court of Appeals of Oregon

June 13, 2018

EVAN MICHAEL MIDDLETON, Petitioner-Appellant,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Submitted September 1, 2017

          Marion County Circuit Court 13C22674; Linda Louise Bergman, Senior Judge.

          Jason Weber and O'Connor Weber LLC fled the opening brief for appellant. Evan Middleton fled the supplemental brief pro se.

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

          Before Hadlock, Presiding Judge, and Tookey, Judge.

         Case Summary:

         Petitioner, who was convicted of multiple crimes including several counts of rape and sexual abuse, appeals a judgment denying him post-conviction relief. On appeal, he contends that the post-conviction court erred by rejecting his request to require his post-conviction lawyer to raise certain claims in the petition for post-conviction relief. He asserts that the claims he sought to raise were for ineffective assistance of counsel and not, as the post-conviction court concluded, claims that petitioner could have raised on direct appeal. Held: The post-conviction court erred. Petitioner could not have raised his ineffective assistance claims on direct appeal and they are cognizable in this post-conviction proceeding. The error is not harmless.

         Vacated and remanded.

         [292 Or.App. 364] HADLOCK, P. J.

         Petitioner was convicted of multiple crimes, including several counts of rape and sexual abuse, and he unsuccessfully appealed. State v. Middleton, 256 Or.App. 173, 300 P.3d 228, rev den, 354 Or. 62 (2013). Petitioner then sought post-conviction relief. In an amended petition filed through counsel, petitioner alleged that he had received ineffective assistance of trial counsel in violation of the state and federal constitutions. Specifically, petitioner claimed that his trial lawyer should have sought to introduce evidence about the victims' past behavior and should have moved for a mistrial at various times.

         After the amended petition was filed, petitioner filed a notice with the post-conviction court, pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), asserting that his post-conviction attorney had failed to raise certain issues in the amended petition. Petitioner claimed, among other things, that his trial lawyer had "fail[ed] to provide effective assistance of counsel by * * * mishandling the DNA evidence [, ] which clearly revealed that petitioner did not have sex with either of the alleged victims" and that "the only seminal fluids" present were from three other men. Petitioner asserted that, because his trial lawyer "mishandled the DNA evidence, " petitioner was denied effective assistance of counsel in a way that prejudiced his case. Petitioner asked that the post-conviction court "'acknowledge' this matter" and either discharge petitioner's post-conviction counsel, or instruct that lawyer to include the additional claims in a second amended post-conviction petition.

         A hearing was held on petitioner's "Church notice" in July 2015. Petitioner and his post-conviction attorney both appeared by telephone. The post-conviction court described the process as creating a record about post-conviction claims that petitioner "believe[s] should be added, but are not being added to the petition." Petitioner asserted that he wanted the court to instruct his post-conviction attorney to raise certain issues, including "arguments against Petitioner's trial counsel ['s] failure to adequately raise and preserve the issues and to advance arguments concerning the DNA issue, and [the trial attorney's] failure to properly handle the DNA [292 Or.App. 365] evidence." In the alternative, petitioner asked the court to replace his post-conviction attorney with another lawyer. Petitioner then discussed the DNA evidence at length. After petitioner had been speaking for some time, the postconviction court asked whether petitioner was reading from a document. Petitioner said that he was, and explained that he had two pages left to read. The post-conviction court said that it would be happy to have petitioner file the document as an exhibit, confirmed that the rest of petitioner's document also related to DNA evidence, and said that it would attach the document as an exhibit to petitioner's Church notice once petitioner sent it to the court.

         The post-conviction court then explained the process further to petitioner, noting that the purpose of the hearing was to raise additional post-conviction claims that petitioner's attorney would not raise. The court said that sometimes it would "direct counsel to raise a claim because it does seem to fit post-conviction." However, the court explained, "one of the legal rules for post-conviction relief is that you cannot raise in post-conviction relief issues that have already been raised in appeal or could have been raised at the appellate stage." The court stated that the issues that petitioner was raising were "matters that cannot be raised in post-conviction." Petitioner protested that the postconviction court had not heard his whole argument, but the court explained that it had read petitioner's motion and supporting affidavit and had "heard the majority of [petitioner's] precise facts" related to the DNA evidence. It adhered to its ruling that the claims petitioner wished to raise "are not appropriate for post-conviction relief" and it denied what it characterized as petitioner's "motion to amend the petition."

         Shortly thereafter, petitioner sent the postconviction court the document he had been reading during the hearing. The first page of the document included the heading, "INEFFECTIVE ASSISTANCE OF COUNSEL." Under that heading, petitioner asserted that he had received unconstitutionally ineffective assistance of trial counsel because his lawyer failed "to vigorously and consistently use the lack of DNA evidence" in petitioner's defense. Petitioner reiterated his request that the court instruct his [292 Or.App. 366] post-conviction lawyer to raise arguments "concerning the DNA issue and [the criminal trial lawyer's] failure to properly handle the DNA evidence." Petitioner again requested, in the alternative, that the court replace his post-conviction counsel with an attorney who would raise that claim. The post-conviction ...

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