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Dillard v. Premo

Court of Appeals of Oregon

April 3, 2019

CARVEL GORDON DILLARD, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Submitted on remand December 11, 2017.

          On remand from the Oregon Supreme Court, Dillard v. Premo, 362 Or. 41, 403 P.3d 746 (2017). Dale Penn, Judge. Marion County Circuit Court 10C22490;

          Jed Peterson and O'Connor Weber LLP fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         This case is on remand from the Supreme Court. Dillard v. Premo, 362 Or. 41, 48, 403 P.3d 746 (2017) (Dillard II). In Dillard v. Premo, 276 Or.App. 65, 366 P.3d 797 (2016), the Court of Appeals had held that it lacked jurisdiction to hear petitioner's claims because ORS 138.525(3) prohibits appeals of post-conviction petitions that are dismissed as meritless. The Supreme Court reversed, explaining that ORS 138.525 does not bar appeal of a judgment that was entered without the benefit of counsel or a hearing unless the judgment was entered in accordance with ORS 138.525(4) as a dismissal "without prejudice." Dillard II, 362 Or at 48. Addressing the merits on remand, petitioner argues that the post-conviction court erred when it dismissed his petition "with prejudice" without first holding a hearing. Held: As the state conceded in Dillard II, and the Supreme Court concluded in that case, the post-conviction court erred when it [296 Or.App. 799] dismissed petitioner's post-conviction petition "with prejudice" without holding a hearing.

         Reversed and remanded.

         [296 Or.App. 800] ORTEGA, J.

         The Supreme Court reversed our prior decision in this case, Dillard v. Premo, 276 Or.App. 65, 366 P.3d 797 (2016) (Dillard I), and remanded to us for further proceedings. Dillard v. Premo, 362 Or. 41, 403 P.3d 746 (2017) (Dillard II). In Dillard I, we dismissed petitioner's appeal, in which he argued that the post-conviction court erred in dismissing his petition for failure to state a claim and in dismissing his petition with prejudice without first holding a hearing. Dillard I, 276 Or.App. at 66-67. We concluded that we lacked jurisdiction to review those claims of error because ORS 138.525(3)[1] prohibits appeals of post-conviction petitions that are dismissed as meritless. Id. Dillard II reversed our decision, holding that "ORS 138.525 does not bar appeal of a judgment entered without the benefit of counsel or a hearing, unless the judgment is entered in accordance with *** [ORS 138.525(4)] as a judgment 'without prejudice.'" Dillard II, 362 Or at 48. On remand following that decision, we now reach the merits of petitioner's second assignment of error, which obviates our need to address the first assignment of error. We hold that the post-conviction court erred when it dismissed petitioner's petition with prejudice without first holding a hearing, and we remand to the post-conviction court for further proceedings.

         The pertinent facts are procedural and are summarized in Dillard II:

"Petitioner was charged with four counts of sexual abuse in the second degree and four counts of prostitution. The indictment alleged crimes against two victims. Petitioner was not represented by counsel at trial. A jury [296 Or.App. 801] found petitioner not guilty of the counts involving one of the victims, but found petitioner guilty of two counts involving the other victim. Petitioner unsuccessfully pursued a direct appeal. State v. Dillard, 233 Or.App. 510, 226 P.3d 130, rev den, 348 Or. 461 (2010).
"Petitioner then filed a timely pro se petition for post-conviction relief. He alleged (1) prosecutorial misconduct that, he claimed, violated his federal rights to a fair trial and due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that could not reasonably have been raised and preserved before or during his trial proceedings; (2) trial court errors, including denial of appointed counsel, that, he alleged, could not effectively have been raised and preserved during the trial proceedings; (3) ineffective assistance of appellate counsel; and (4) actual innocence. Defendant filed a motion pursuant to ORCP 21 A(8) to dismiss the petition for failure to state ultimate facts sufficient to constitute post-conviction claims. Defendant contended that petitioner's 36-page handwritten petition identified the 'facts of the case' but made no cognizable legal claims; that petitioner 'was aware' of the facts that he alleged and reasonably could have litigated them at the time of trial; that his claims of inadequate assistance of appellate counsel stated only what counsel had failed to do and not 'ultimate facts,' and did not articulate how the failures prejudiced petitioner; and that actual innocence is not a claim for relief under Oregon law.
"Petitioner was represented by counsel at that time, and, although the pro se petition at issue requested a hearing, counsel did not request a hearing on defendant's motion, and, as defendant recognizes, the post-conviction court did not grant a hearing. Instead, the court found defendant's arguments persuasive, adopted them, and granted defendant's motion. Subsequently, the court entered a general judgment dismissing the action 'with ...

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