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Field v. Myrick

Court of Appeals of Oregon

October 2, 2019

FREDERICK GEORGE FIELD, Petitioner-Appellant,
v.
John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Submitted October 5, 2018

          Umatilla County Circuit Court CV131579; Rick J. McCormick, Senior Judge.

          Frederick G. Field fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Petitioner appeals a judgment denying his petition for post-conviction relief. Petitioner fled, through the assistance of counsel, a petition for post-conviction relief. Post-conviction relief was denied, and petitioner now appeals pro se. Petitioner assigns error to the post-conviction court's denial of his motion, pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), requesting that the court either substitute counsel or compel counsel to raise additional claims identified by petitioner. While this case was pending on appeal, in Bogle v. State of Oregon, 363 Or. 455, 423 P.3d 715 (2018), the Oregon Supreme Court clarified that, in response to a Church motion, a post-conviction court should determine whether petitioner has established that, "in choosing which grounds for relief to raise, counsel has failed to exercise reasonable professional skill and judgment." Held: In light of Bogle, the post-conviction court erred in its response to petitioner's Church motion.

         [299 Or.App. 635] JAMES, J.

         Petitioner, an anesthesiologist, pleaded guilty to 11 counts of first-degree sexual abuse and one count of first-degree rape, resulting from his abuse of 12 of his sedated female patients. He subsequently filed, through the assistance of counsel, a petition for post-conviction relief raising numerous claims of ineffective assistance of trial counsel. Post-conviction relief was denied, and he now appeals pro se, raising six assignments of error. We reject without discussion five of those assignments, writing only to address his second assignment of error in which he alleges that the post-conviction court erred in handling his motion, filed pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), requesting either substitution of counsel or for the post-conviction court to compel post-conviction trial counsel to raise additional claims identified by petitioner. While this case was pending on appeal, the Oregon Supreme Court clarified how a post-conviction court should respond to a Church motion in Bogle v. State of Oregon, 363 Or. 455, 423 P.3d 715 (2018). In light of Bogle, we conclude that the postconviction court erred in its response to petitioner's Church motion and, accordingly, remand for further proceedings on the four claims raised in the Church motion, but we otherwise affirm the judgment on the claims presented in the fourth amended petition.

         The factual basis underlying petitioner's convictions are not relevant to this appeal, and we do not discuss them. The only pertinent facts for our purposes are procedural and concern the court's handling of petitioner's Church motion. Those facts are undisputed.

         Post-conviction counsel filed four petitions, with the fourth-the operative pleading for the post-conviction trial-raising numerous claims of ineffective assistance of trial counsel. Believing his post-conviction counsel had not raised all the claims available to him, petitioner filed a Church motion. In support of that motion, petitioner filed an accompanying 20-page memorandum of law wherein he argued why the four claims asserted in the Church motion were legitimate.

         [299 Or.App. 636] On November 24, 2015, approximately two weeks before the scheduled trial, the court held a hearing on the Church motion wherein petitioner presented a lengthy and detailed oral argument, grounded in that memorandum of law, asserting that his claims were legitimate and that reasonable counsel should raise them. Petitioner concluded that presentation stating:

"[PETITIONER]: And the problem with these is these are all meritorious claims, I believe. And I believe that strongly. And [post-conviction counsel] did not put them in the petition. If I do not make the Court aware of these factors that I wish to have added I am waiving my right to them.
"And, obviously, I mean, I don't need to cite Church v. Gladden to you, but I do not wish to waive my rights to these and I would like the Court to request [post-conviction counsel] to include these claims."

         Immediately following that presentation, the court inquired of post-conviction counsel, who conceded that, in light of the memorandum of law and oral argument, counsel was ...


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