Submitted on remand December 11, 2017.
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;
Peterson and O'Connor Weber LLP fled the brief for
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Kathleen Cegla, Assistant Attorney General, fled
the brief for respondent.
Tookey, Presiding Judge, and Egan, Chief Judge, and Ortega,
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.
Or.App. 800] ORTEGA, J.
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) 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.
pertinent facts are procedural and are summarized in
"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