Submitted June 1, 2018
Umatilla County Circuit Court 17CV29976; Daniel J. Hill,
Bohanan fled the briefs for appellant pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Rebecca M. Auten, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: In this post-conviction proceeding, petitioner
appeals a limited judgment imposing a $252 fling fee. The
post-conviction court ordered that the fling fee be drawn
from or charged against petitioner's inmate trust
account. On appeal, petitioner contends that the
post-conviction court erred because (1) petitioner was
proceeding as a "financially eligible person"
pursuant to ORS 138.590 and, consequently, the public defense
services executive director was required to pay
petitioner's fling fee; (2) the post-conviction court
imposed the $252 fling fee under the erroneous presumption
that it could not reduce or waive the fling fee, but that it
could have done so pursuant to ORS 21.682(1); and (3) the
post-conviction court's limited judgment was issued
without making any findings related to petitioner's
ability to pay the fling fee. Held: The
post-conviction court did not err. ORS 138.590(8) authorizes
a post-conviction court to order that a petitioner's
fling fee be drawn from or charged against the
petitioner's inmate trust account when the petitioner is
unable to pay the expenses of a post-conviction proceeding,
as was the case here. Additionally, ORS 21.682(1) does not
apply to fling fees in proceedings for post-conviction relief
and ORS 138.590(8) does not authorize a post-conviction court
to reduce or waive the fling fee in such proceedings.
Or.App 740] TOOKEY, J.
proceeding for post-conviction relief pursuant to ORS 138.510
to 138.680, petitioner appeals a limited judgment imposing
fling fees. In his sole assignment of error, petitioner
contends that the post-conviction court erred "in
issuing a limited monetary judgment against" him. For
the reasons that follow, we affirm.
review of post-conviction proceedings is limited to questions
of law appearing in the record." Dillard v.
Premo, 296 Or.App. 798, 803, __ P.3d __ (2019). We
review petitioner's arguments accordingly.
pertinent facts are not in dispute. Petitioner fled a
petition for post-conviction relief pursuant to ORS 138.510
to 138.680. Along with his petition, petitioner fled a motion
requesting the "waiver or deferral of all fling fees and
court costs associated with the initiation and prosecution of
this post-conviction proceeding and for the appointment of
suitable counsel to represent petitioner in this
proceeding." The motion explained that petitioner had
"no tangible assets nor moneys to draw upon to pay the
costs associated with initiating and prosecuting this
action." Attached to petitioner's motion was a
statement detailing the then current balance of, and the
transactions in, petitioner's inmate trust account.
the post-conviction court issued an order allowing petitioner
to file the petition for post-conviction relief "without
immediate payment of the fling fee." The order further
provides that "[t]he fling fee is not waived[, ] but
shall be drawn from and charged against the
[petitioner's] Department of Corrections Trust Account
per ORS 138.590(a) & (b)." That order also appointed
counsel for petitioner.
post-conviction court then issued a limited judgment
captioned "JUDGMENT RE: DEFERRED FEES," which
imposed "[f]iling [f]ees" in the amount of $252.
(Uppercase in limited judgment.)
appeal, petitioner raises three arguments as to how the
post-conviction court purportedly erred. First, petitioner
contends that, because petitioner is proceeding as a [297
Or.App 741] "financially eligible person" pursuant
to ORS 138.590, "the executive director of the public
defense services is required to pay [petitioner's] fling
fee," not petitioner. Second, petitioner contends that
the post-conviction court "imposed a $252 monetary fling
fee under the presumption that this is what is
required," but that that presumption was erroneous.
Third, petitioner contends that the post-conviction
court's "monetary judgment was issued without notice
nor opportunity for hearing and without making any findings
related to petitioner's ability to pay the fling
fee," which petitioner contends "has been held to
be improper in numerous other similar contexts."
context for resolution of petitioner's arguments, we
first consider two statutes, ORS 138.560 and ORS 138.590,
which we set out in pertinent part below. In construing those
statutes, our goal is to discern the legislature's
intent, and to do so, we examine the text of the statute in
context, along with relevant legislative history and, if
necessary, canons of construction. State v. Gaines,
346 Or. 160, 171-72, 206 P.3d 1042 (2009). "Further,
perhaps to state the obvious, any previous construction of
the statute is relevant to our analysis." State v.
Hutchins, 281 Or.App. 495, 501, 383 P.3d 399 (2016).
138.560(1) provides, in pertinent part:
"A proceeding for post-conviction relief pursuant to ORS
138.510 to 138.680 shall be commenced by fling a petition
with the clerk of the circuit court for the county in which
the petitioner is imprisoned * * *. Except as otherwise
provided in ORS 138.590, the petitioner must pay the fling
fee established under ORS 21.135 at the time of fling a
petition under this section."
138.560(1) thus establishes a fling fee for petitions seeking
post-conviction relief pursuant to ORS 138.510 to 138.680 and
requires that that fee be paid by a petitioner at the time
the petition is fled, except as otherwise provided in ORS
138.590. ORS 138.590, in turn, provides, in pertinent part:
"(1) Any petitioner who is unable to pay the expenses of
a proceeding pursuant to ORS 138.510 to 138.680 * * * [297
Or.App 742] may proceed as a financially eligible person
pursuant to this ...