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Velasco v. State

Court of Appeals of Oregon

July 25, 2018

DAVID MERIDA VELASCO, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted October 27, 2016

          Morrow County Circuit Court 14CV149 Rick J. McCormick, Senior Judge.

          David J. Celuch argued the cause and fled the brief for appellant.

          Inge D. Wells, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Petitioner appeals a judgment denying his petition for post-conviction relief, challenging the post-conviction court's conclusion that he was not entitled to relief under the Post-Conviction Hearing Act, ORS 138.510 to 138.680 (the Act), because the underlying criminal proceedings that led to his allegations of inadequate assistance of counsel did not result in a "conviction." Held: Because the criminal charge against petitioner was dismissed without a judgment of conviction ever having been entered after he successfully completed the terms and conditions of his probation under a conditional discharge, ORS 475.245 (2013), amended by Or. Laws 2015, ch 125, § 1; Or. Laws 2016, ch 24, § 58; Or. Laws 2017, ch 21, § 23, petitioner was not "convicted" for purposes of the availability of relief under the Act. Accordingly, the post-conviction court did not err in denying relief.

         Affirmed.

          [293 Or. 2] EGAN, C. J.

         Petitioner appeals a judgment denying his petition for post-conviction relief (PCR) under Oregon's Post-Conviction Hearing Act, ORS 138.510 to 138.680 (the Act). In his underlying criminal case, petitioner pleaded guilty to one count of possession of marijuana and received a conditional discharge under ORS 475.245 (2013), amended by Or. Laws 2015, ch 125, § 1; Or. Laws 2016, ch 24, § 58; Or. Laws 2017, ch 21, § 23.[1] As that statute contemplates, the charge was dismissed when petitioner completed the conditions of his probation. In light of those circumstances, the post-conviction court denied petitioner's PCR petition on the ground that petitioner had not been "convicted" of an offense, a necessary predicate to obtaining relief under the Act. For the reasons that follow, we conclude that the post-conviction court correctly denied petitioner relief; accordingly, we affirm.

         The pertinent facts are few and undisputed. In late 2013, petitioner was charged with one count of unlawful manufacture of marijuana. On January 9, 2014, he pleaded guilty under a conditional discharge agreement to one count of unlawful possession of marijuana, former ORS 475.864 (2013), repealed by Or. Laws 2017, ch 21, § 126, and the trial court entered a "check-the-box" type form order. The form order, originally captioned "Judgment and Sentence Order," was altered to read "Sentence Order of Conditional Discharge"; it stated, as relevant, that petitioner was "ordered and adjudged" guilty of one count of unlawful possession of marijuana and that the "[c]ase [was] to be treated [293 Or. 3] as a conditional discharge immediately/upon successful completion of conditions." (Boldface omitted; capitalization altered.) It also ordered petitioner to serve 18 months' probation, with specified conditions.

         On June 20, 2014, petitioner sought post-conviction relief, claiming that he was denied adequate assistance of counsel under the federal and state constitutions in several particulars, including by his trial counsel's failure to advise him of the immigration consequences of his guilty plea- specifically, "that his criminal conviction could cause him to be deported or ineligible for admissibility into the United States." Petitioner also alleged that trial counsel was constitutionally inadequate in failing to advise him of the possibility of suppressing the contents of his statements to the police and that "he could not plead guilty to a charge he did not feel there was a factual basis to be convicted for."[2]

         While the PCR matter was pending, petitioner successfully completed the conditions of his probation in his criminal case, and, upon stipulation of the parties, the trial court, on October 16, 2014, entered an order terminating petitioner's probation early and applying conditional discharge. Consequently, the criminal charge was dismissed.[3]See ORS 475.245 (2013) ("Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person.").

         Soon thereafter, on November 17, 2014, the state filed a motion for summary judgment in petitioner's PCR case, arguing that, because a conviction was never entered in petitioner's criminal case, post-conviction review was not available to petitioner under ORS 138.530(1)(a) (set out below, 293 Or.App. at 4). In response, petitioner argued that he had "suffered a 'conviction'" for purposes of ORS 138.530 [293 Or. 4] because he had "admitted to acts constituting a crime," citing State v. McDonnell, 306 Or. 579, 581-82, 761 P.2d 921 (1988), and "the subsequent dismissal of [his] charges does not mean that he was never convicted of the offense." The post-conviction court ultimately agreed with the state, concluding that "[r]elief under [ORS] 138.530 requires the defendant be convicted" and conviction does not occur when a defendant enters a plea on conditional discharge, but, rather, "[a] conviction happens when a judgment is rendered pursuant to that plea."[4] Accordingly, the court entered a judgment denying petitioner's PCR petition.[5]

         Petitioner appeals, reprising the arguments he made below.[6] He requests that his petition be granted and that "the underlying criminal conviction *** be vacated and remanded for a new trial." We ...


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