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Bohanan v. Amsberry

Court of Appeals of Oregon

May 30, 2019

RICK ROY BOHANAN, Petitioner-Appellant,
v.
Brigitte AMSBERRY, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Submitted June 1, 2018

          Umatilla County Circuit Court 17CV29976; Daniel J. Hill, Judge.

          Rick Bohanan fled the briefs for appellant pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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.

         [297 Or.App 740] TOOKEY, J.

         In this 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.

         "Appellate 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.

         The 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.

         Subsequently, 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.

         The 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.)

         On 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."

         As 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).

         ORS 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."

         ORS 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 ...

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