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Perez-Rodriguez v. State

Supreme Court of Oregon

February 28, 2019

RICARDO PEREZ-RODRIGUEZ, Petitioner on Review,
v.
STATE OF OREGON, Respondent on Review.

          Argued and submitted March 7, 2018

          On review from the Court of Appeals. (CC C152724CV) (CA A160511) [*]

          Jed Peterson, O'Connor Weber LLC, Portland, argued the cause and fled the briefs for petitioner on review.

          Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause for respondent on review. Ryan Kahn, Assistant Attorney General, fled the brief. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Justice pro tempore. [**]

         Garrett, J., concurred and fled an opinion.

         [364 Or. 490] Case Summary:

         In a petition for post-conviction relief, petitioner alleged that his trial counsel was constitutionally ineffective and inadequate under the state and federal constitutions, based on the fact, although petitioner was told that there might be immigration consequences to his guilty plea, petitioner's trial counsel failed to inform petitioner that his guilty was certain to have immigration consequences. The petition was fled outside the two-year statute of limitations under ORS 138.510(3). Petitioner alleged that his petition fell within the escape clause because he learned of counsel's inadequacy only when he was placed in deportation proceedings, after the statute of limitations had run, and because he suffered from mental illness and intellectual disability. The post-conviction court dismissed the petition as time-barred. The Court of Appeals affirmed. Held: (1) Petitioner alleged facts putting him on notice of potential immigration consequences for his criminal conviction, at which point it was incumbent on petitioner to determine what those immigration consequences might be and whether his trial counsel had failed to accurately communicate those consequences to him; (2) even if a petitioner's mental illness and intellectual disability could justify applying the escape clause, petitioner's specific allegations in this case would not justify applying the escape clause in this case.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [364 Or. 491] NELSON, J.

         Under the Post-Conviction Hearing Act (PCHA), a petition for post-conviction relief must generally be filed within two years of a criminal defendant's conviction becoming final. ORS 138.510(3). That statute of limitations, however, is subject to an escape clause, allowing an untimely petition if the post-conviction court "finds grounds for relief asserted which could not reasonably have been raised" within the limitations period. Id.

         We allowed review of two cases-this case, and Gutale v. State of Oregon, 285 Or.App. 39, 395 P.3d 942 (2017)-that require us to interpret the meaning and scope of that escape clause. In both cases, petitioners alleged that their trial counsels were constitutionally ineffective and inadequate under the state and federal constitutions, based on the failure of those attorneys to provide petitioners with information regarding the immigration consequences of their guilty pleas. See Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (requiring counsel to inform a criminal defendant of clear immigration consequences of a plea and, where consequences are not clear, to advise that plea may carry a risk of adverse immigration consequences). And petitioners in both cases alleged that their claims fell within the escape clause because they learned of their counsel's inadequacy only when they were put in deportation proceedings after the statute of limitations had run. Both petitioners argued that they should not have been presumed to know the law any sooner than that.

         But there are some differences between the cases. In this case, but not in Gutale, petitioner was told at the time of his plea that there might be immigration consequences to his conviction, even though he was not told that there certainly would be immigration consequences. Compare Gutale v. State of Oregon, 364 Or. 502 ___, ___, P.3d ___ (2019). Additionally, in this case, but not in Gutale, petitioner alleged that his mental illness and intellectual disability prevented him from knowing that he had a claim for post-conviction relief within the two-year limitations period.

         [364 Or. 492] The state moved to dismiss, arguing that petitioner could not obtain relief under the escape clause because the laws underlying petitioner's claim were reasonably available to him. The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed without opinion. Perez-Rodriguez v. State of Oregon, 284 Or.App. 890, 393 P.3d 1209 (2017). For the reasons stated below, we affirm the decision of the Court of Appeals and the judgment of the post-conviction court.

         We take the historical facts from the allegations in petitioner's pleadings and attachments. See Verduzco v. State of Oregon,357 Or. 553, 555 n 1, 355 P.3d 902 (2015) (taking undisputed facts from petitioner's pleadings and attachments). Petitioner is a lawful permanent resident who immigrated to the United States from Argentina in 1977, when he was about six years old. On August 27, 2011, petitioner went to the Emergency Department at Saint Vincent's Hospital in Washington County. He began acting erratically in the waiting room, and ultimately attacked and injured a security guard who was attempting to assist him. When law enforcement ...


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