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Bogle v. State

Supreme Court of Oregon, En Banc

August 9, 2018

TRACEY E. BOGLE, Petitioner on Review,
v.
STATE OF OREGON, Respondent on Review. TRACEY E. BOGLE, Respondent on Review,
v.
STATE OF OREGON, Petitioner on Review. TRACEY BOGLE, Petitioner on Review,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Respondent on Review.

          Argued and submitted May 8, 2018

          On review from the Court of Appeals (CC 13C14935; 14C23348) (CA A160042; A159747). [*]

          Jedediah Peterson, O'Connor Weber LLC, Portland, argued the cause and fled the briefs for Tracey E. Bogle.

         [363 Or. 456] Tracey E. Bogle, Salem, fled the supplemental brief pro se.

          Benjamin Gutman, Solicitor General, Salem, argued the cause and fled the brief for State of Oregon and Mark Nooth, Superintendent. Also on the brief was Ellen F. Rosenblum, Attorney General.

         Case Summary: This appeal involves two post-conviction cases arising out of the same underlying criminal case, which were consolidated for review. In Bogle v. State, petitioner was represented by counsel but fled pro se motions pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), including a motion asking the post-conviction court to instruct petitioner's counsel to raise an additional ground for relief. The post-conviction court denied the pro se motions, and denied relief on the grounds raised by counsel. The Court of Appeals affirmed, but, based on its understanding of Church, indicated that petitioner would not be barred from raising his pro se grounds for relief in a subsequent post-conviction case, despite ORS 138.550(3), a claim preclusion rule. While Bogle v. State was pending in the post-conviction court, petitioner initiated a second post-conviction case, Bogle v. Nooth. On the state's motion, the post-conviction court dismissed that case on two alternative grounds, ORCP 21 A(3) and ORS 138.550(3), and the Court of Appeals affirmed. Held: (1) the purpose of a petitioner's Church motion is to inform the post-conviction court that petitioner's counsel has failed to assert a ground for relief and to ask the court either to replace counsel or to instruct counsel to assert the ground for relief; (2) given that purpose, a petitioner must make a legitimate complaint regarding counsel; (3) a legitimate complaint includes a complaint that counsel is not exercising reasonable professional skill and judgment; (4) if the petitioner makes that showing, the post-conviction court must exercise its discretion to replace or instruct counsel; (5) the post-conviction court did not err in its response to petitioner's pro se motions, but the Court of Appeals did err in holding that, because petitioner fled the motions, he would not be barred by ORS 138.550(3) from later raising the claims that he had identified in the motions; (6) the post-conviction court did not plainly err in dismissing petitioner's second post-conviction case based on ORCP 21 A(3).

         The decisions of the Court of Appeals and the judgments of the circuit court are affirmed.

         [363 Or. 457] DUNCAN, J.

         This appeal involves two post-conviction relief cases, which arose out of the same underlying criminal case and have been consolidated for review: Bogle v. State of Oregon, 284 Or.App. 882, 395 P.3d 643 (2017), and Bogle v. Nooth, 284 Or.App. 879, 395 P.3d 644 (2017).

         In Bogle v. State, petitioner, who was represented by counsel, filed pro se motions pursuant to Church v. Gladden, 244 Or. 308, 311, 417 P.2d 993 (1966). The motions included a motion for the court to instruct petitioner's counsel to raise an additional ground for relief. The post-conviction court denied the pro se motions, and, after a hearing on the merits of the grounds for relief that counsel had raised, the court denied relief. Petitioner appealed, arguing that the court had erred by failing to consider his pro se grounds for relief or, alternatively, by failing either to instruct counsel to raise them or to make a record of its reasons for not instructing counsel to do so. The Court of Appeals affirmed, holding that the post-conviction court did not err in its response to petitioner's pro se motions because petitioner could raise his pro se grounds for relief in a subsequent post-conviction case.

         Both petitioner and the state petitioned for review, and we allowed both petitions. On review, the parties dispute what actions a post-conviction court must take in response to a Church motion in which a petitioner asserts that court-appointed counsel is failing to raise a ground for relief and asks the court either to replace counsel or to instruct counsel to raise the ground for relief. The parties also dispute what effect the filing of such a motion has on whether the petitioner can raise the ground for relief in a subsequent post-conviction case, given that ORS 138.550(3) provides that any ground for relief that is not raised in a petitioner's first post-conviction case is deemed waived, unless it could not reasonably have been raised in the first case.

         For the reasons explained below, we hold that, when a petitioner files a motion asserting that court-appointed counsel is failing to raise a ground for relief and asking the court either to replace counsel or to instruct counsel to raise the ground for relief, the question for the post-conviction [363 Or. 458] court is whether the petitioner has established that counsel's failure to raise the ground for relief constitutes a failure to exercise reasonable professional skill and judgment. If so, then the court must exercise its discretion to either replace or instruct counsel. The purpose of such a motion is for petitioner to seek to have counsel raise the ground for relief in the current post-conviction case; it is not to enable the petitioner to avoid claim preclusion under ORS 138.550(3) and raise the ground in a subsequent post-conviction case. Applying those holdings, we affirm the judgment of the post-conviction court and the decision of the Court of Appeals in Bogle v. State, although our reasoning differs from that of the Court of Appeals.

         While Bogle v. State was pending in the post-conviction court, petitioner initiated a second post-conviction case, Bogle v. Nooth. On the state's motion, the post-conviction court dismissed that case, citing both ORCP 21 A(3), which allows a court to dismiss an action when "there is another action pending between the same parties for the same cause," and ORS 138.550(3), which bars successive post-conviction cases. Petitioner appealed, and the Court of Appeals affirmed the post-conviction court's dismissal under ORCP 21 A(3). Petitioner petitioned for review, asserting, among other things, that the post-conviction court plainly erred in relying on ORCP 21 A(3) in a post-conviction case. As explained below, we conclude that the post-conviction court did not plainly err and, therefore, we affirm the judgment of the post-conviction court and the decision of the Court of Appeals in Bogle v. Nooth.

         I. PROCEDURAL BACKGROUND

         The relevant facts are primarily procedural. Petitioner pleaded guilty to and was convicted of burglary and assault. Pursuant to a plea deal, the trial court imposed probation. Petitioner did not appeal his convictions or sentences. Later, the state alleged that petitioner violated the conditions of his probation. The trial court revoked petitioner's probation and imposed the 72-month prison sentence that petitioner had agreed to as part of his plea deal. In connection with the plea and probation violation proceedings, [363 Or. 459] petitioner initiated the two post-conviction cases that are before us, Bogle v. State and Bogle v. Nooth.

         A. Bogle v. State

         While his probation violation proceeding was pending, petitioner filed his post-conviction petition in Bogle v. State, alleging that his attorney in the plea proceeding had failed to adequately represent him. The post-conviction court appointed post-conviction counsel to represent petitioner, and counsel filed three amended petitions clarifying petitioner's claims. In the third amended petition, which was filed after petitioner's probation was revoked, counsel added claims asserting that petitioner's attorney in the probation violation proceeding had failed to adequately represent him. Because petitioner wanted to assert additional claims, counsel also added a section entitled "PETITIONER'S PRO SE CLAIMS FOR RELIEF." Counsel expressly refused to certify that any of the pro se claims were "well grounded in fact and warranted by existing law, or a good faith argument for the extension, modification or reversal of existing law," and he stated that he had included the pro se claims in the petition "to assist [petitioner] in preserving his claims." See ORCP 17.[1] Counsel cited Church as authority for including the pro se claims. Although counsel had included petitioner's pro se claims in the third amended petition, petitioner filed a series of pro se motions asserting the same claims. He cited Church as authority for filing the motions and asserting the claims.

         As discussed in greater detail below, in Church this court rejected a petitioner's argument that, in his second post-conviction case, he could raise grounds for relief that the attorney in his first post-conviction case had failed to raise. 244 Or. at 310-11. This court held that the grounds for relief were barred by ORS 138.550(3), which generally bars successive post-conviction cases. In addition, this court stated that, if, during his first post-conviction case, [363 Or. 460] the petitioner had believed that his attorney was failing to raise a ground for relief, the petitioner had to inform the post-conviction court of that fact and ask the court either to replace the attorney or instruct the attorney to raise the ground for relief. Id. at 311-12.

         In response to the filings citing Church in this case, the post-conviction court held a hearing on petitioner's pro se claims. During that hearing, the court reviewed each claim and explained to petitioner why it could not be raised. Then the court struck all of petitioner's pro se claims.

         After that hearing, this court issued its decision in Johnson v. Premo, 355 Or. 866, 877, 333 P.3d 288 (2014), in which it clarified that Church does not authorize a represented petitioner to assert pro se grounds for relief. This court explained,

"[N]othing in [Church] sanctions the sort of hybrid representation that permits a post-conviction petitioner to be represented by counsel and, at the same time, flood the court with pro se motions and with other requests for relief any time the petitioner disagrees with counsel's prosecution of the case. Church says no more than this: If a post-conviction petitioner's attorney fails to assert a ground for relief, the petitioner must bring that fact to the attention of the court to avoid the effect of ORS 138.550(3)."

Id.

         Despite Johnson, petitioner filed a second series of pro se motions. Each motion cited Church as authority for filing the motion. However, only two of the motions asserted pro se grounds for relief that had not been addressed in the first Church hearing, and only one of those motions also asked the court to order counsel to raise the new ground for relief.[2]

         [363 Or. 461] In response to petitioner's second series of pro se motions, the post-conviction court held another hearing. At that hearing, the court explained that it had received and reviewed the new pro se filings and that the purpose of the hearing was "to clarify the record concerning these new filings." The court stated that it wished to begin by explaining its view, then allow petitioner to state his concerns, and finally "move forward with how to clarify things." The court acknowledged that petitioner had cited Church as the basis for his pro se filings, but explained that, in its view,

"Church simply says an inmate must raise his claims some way. He cannot simply sit silent through judicial proceedings and not raise his claims and then try to utilize those claims at a later time. That's all Church v. Gladden says. It doesn't authorize hearings, it doesn't authorize a separate kind of motion practice [.]"

         The post-conviction court also stated that, under Johnson, "if a litigant appears by counsel, they cannot also have pro se matters themselves." The court then recounted what had happened at and after the prior hearing:

"[W]hen we had our hearing last fall on what we called the Church v. Gladden hearing, the purpose of that hearing was to allow you to educate me about the claims that you wished to have certified in your petition and claims that your attorney had not been able to certify. So I allowed you to file a memorandum and we had oral discussion on the record about all of those claims and when we concluded, I gave you my ruling that those claims that you were wishing to add to your petition lacked a legal or factual basis and I would not allow amendment of the petition.
"Since that time, I've gotten various different motions where you are complaining that, hey, I didn't get to amend my petition, and so I want to remove [the judge] and I want to have my pro se claims renewed and I want to have them established and I want to do depositions and I want to do other things under those claims[.] *** So my ruling is you've made the record. Those claims are not authorized and we need to move forward to your trial ***.
[363 Or. 462] "Now, those are the concerns I have, and as I view the record, I would say that each of your motions have already been established and that they do not have a legal basis and I would deny them and I would move forward to the trial date."

         The post-conviction court then gave petitioner an opportunity to explain why he had authority to file the motions and have the court consider them. Petitioner responded by explaining all of his motions and the concerns underlying them. Eventually, petitioner expressed concerns about counsel's performance and asked the court to replace counsel or allow petitioner to represent himself. The court denied petitioner's request for substitution of counsel, because it concluded that none of petitioner's concerns provided a basis for substitution. The court then reminded petitioner that he could not simultaneously be represented by counsel and represent himself:

"One of the issues in [Johnson] is *** you can't have hybrid representation which is what you've been trying to do for the last six months, where you have a lawyer, a lawyer has done your petition, is preparing for your trial and then you have filed a number of independent pro se motions. I've tried to rule on those as I mentioned and so your record is clear and you have the ability if your trial is unsuccessful, you have the right to file an appeal and certainly your record would be there *** but my ruling is there that I ruled that they do not have a legal or factual basis and they cannot be certified and so they cannot be part of the petition. *** But I can't allow you to try to be the lawyer of the case when you have a lawyer and I can't allow ...

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