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Bell v. Hendricks

Court of Appeals of Oregon

December 11, 2019

LARRY LYDELL BELL, SR., Petitioner-Appellant,
v.
Kimberly HENDRICKS, Superintendent, Santiam Correctional Institution, Defendant-Respondent.

          Submitted November 19, 2019

          Marion County Circuit Court 16CV20541; Linda Louise Bergman, Senior Judge.

          Lindsey Burrows and O'Connor Weber LLC fled the brief for appellant.

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

          Before Lagesen, Presiding Judge, and Powers, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief. He assigns error to the post-conviction court's denial of relief on the single claim that he asserted through counsel in his amended petition: Trial counsel was ineffective for failing to object on double-jeopardy grounds when the state introduced additional enhancement factors on resentencing. Petitioner also assigns error to the post-conviction court's handling of his motion, fled pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), in which he sought to raise additional claims that had been raised in his original pro se petition. According to petitioner, the post-conviction court did not consider and rule on his motion in the way required by the Supreme Court's subsequent decision in Bogle v. State of Oregon, 363 Or. 455, 423 P.3d 715 (2018).

         Held:

         Petitioner's assignment of error regarding the claim he asserted through counsel is foreclosed by the Supreme Court's holding in State v. Sawatzky, 339 Or. 689, 125 P.3d 722 (2005). However, the record does not reflect that the post-conviction court ruled in the manner [301 Or.App. 217] required by Bogle, so the Court of Appeals remanded for the court to reconsider petitioner's Church motion in light of that decision.

         [301 Or.App. 218] LAGESEN, P. J.

         Petitioner appeals a judgment denying his petition for post-conviction relief, advancing two assignments of error. In one of those assignments, he argues that the post-conviction court erred in denying relief on the single claim that he asserted through counsel in his amended petition: trial counsel was ineffective for failing to object on double-jeopardy grounds when the state introduced additional enhancement factors on resentencing. That argument is foreclosed by the Supreme Court's holding in State v. Sawatzky, 339 Or. 689, 691, 125 P.3d 722 (2005), and we reject it for that reason. See id. (concluding that a criminal defendant's "rights against former and double jeopardy do not prohibit the trial court from empaneling a jury to determine aggravating factors on which the trial court may rely in imposing sentences that exceed the presumptive range for the felony crimes to which [that defendant] pleaded guilty").

         Petitioner also assigns error to the post-conviction court's handling of his motion, filed pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), in which he sought to raise additional claims that had been raised in his original pro se petition. At the time that petitioner advanced that motion, controlling decisions of this court had held that "[a] Church motion is simply the procedural mechanism by which a post-conviction petitioner informs the court of an attorney's failure to raise issues so as to avoid the preclusive effect of ORS 138.550(3)," and that "[n]othing in that procedural mechanism necessitates a response by the post-conviction court, or post-conviction counsel." Lopez v. Nooth, 287 Or.App. 731, 735, 403 P.3d 484 (2017) (citing Bogle v. State of Oregon, 284 Or.App. 882, 883-84, 395 P.3d 643, aff'd on other grounds, 363 Or. 455, 423 P.3d 715 (2018)). The Supreme Court had, by that time, allowed review of our decision in Bogle. 362 Or. 281 (2017).

         Based on the controlling cases from this court, petitioner's post-conviction counsel informed the court that petitioner's Church motion was merely preserving his claims. Counsel stated that petitioner

"did assert some Church claims. But of course the Court's not addressing this today. And I've explained to Petitioner [301 Or.App. 219] that those are as preserved as they're going to get. But that he-and he's done his best to try to litigate them. And so I wanted to point out on the record today that he's not ...

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