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Ogle v. Nooth

Supreme Court of Oregon, En Banc

December 12, 2019

KEITH KENDON OGLE, Petitioner on Review,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Respondent on Review.

          Argued and Submitted June 4, 2019.

         On review from the Court of Appeals (CC 10108394P) (CA A160243).[*]

          Jason Weber, O'Connor Weber LLC, Portland, argued the cause and fled the briefs for petitioner on review.

          Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [365 Or. 772] Case Summary:

         In a post-conviction case, the post-conviction court granted petitioner relief on the ground that, in the underlying criminal case, petitioner's defense counsel failed to provide adequate and effective representation because he failed to employ an investigator and that failure prejudiced petitioner. The Court of Appeals reversed, holding that the post-conviction court had erred because it granted petitioner relief on a basis that petitioner had not alleged in his post-conviction petition. In doing so, the Court of Appeals relied on a post-conviction statute, ORS 138.550(3), and its cases interpreting that statute, for the proposition that any ground for relief that is not alleged in a petition is deemed waived.

         Held:

         (1) The Oregon Rules of Civil Procedure apply to post-conviction proceedings except when they are incompatible with the post-conviction statutes, and ORCP 23 B directs courts to consider unpleaded issues that are tried by express or implied consent; (2) the Court of Appeals erred in concluding that ORS 138.550(3) required waiver of claims not contained in the post-conviction petition, because that statute addresses res judicata and only applies when a petitioner omits a claim from one post-conviction case and attempts to present that claim in a later post-conviction case; (3) because the parties had fully litigated the unpleaded ground on evidence that had been introduced without objection, the unpleaded ground had been tried by implied consent, and ORCP 23 B allowed the post-conviction court to grant relief on that ground.

         The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.

         [365 Or. 773] DUNCAN, J.

         In this post-conviction case, the post-conviction court granted petitioner relief on the ground that, in the underlying criminal case, petitioner's defense counsel failed to provide adequate and effective representation because he failed to employ an investigator and that failure prejudiced petitioner. The Court of Appeals reversed, holding that the post-conviction court had erred because it granted petitioner relief on a basis that petitioner had not alleged in his post-conviction petition. Ogle v. Nooth, 292 Or.App. 387, 424 P.3d 759 (2018). In doing so, the Court of Appeals relied on a post-conviction statute, ORS 138.550(3), and its cases interpreting that statute, for the proposition that any ground for relief that is not alleged in a petition is deemed waived.

         For the reasons explained below, we conclude that the Court of Appeals erred in relying on ORS 138.550(3). That provision is a res judicata provision. It governs the effect of a post-conviction proceeding on a subsequent post-conviction proceeding. It does not preclude a post-conviction court from addressing an unpleaded ground for relief within a single post-conviction case. Whether a court can address an unpleaded ground for relief is governed by the Oregon Rules of Civil Procedure, and ORCP 23 B allows a court to address an unpleaded ground if it has been tried by express or implied consent.

         Here, the parties dispute (1) whether petitioner's post-conviction petition encompassed the basis on which the post-conviction court granted relief and (2), if it did not, whether the post-conviction court could grant relief on that basis anyway because the parties litigated it. For the reasons explained below, we need not resolve the parties' first dispute because, even if the petition did not encompass the basis on which the post-conviction court granted relief, the court could consider that basis because the parties had litigated it. Therefore, we reverse the decision of the Court of Appeals and remand to that court for further proceedings.

         [365 Or. 774] I. HISTORICAL AND PROCEDURAL FACTS

         A. Underlying Criminal Case

         In the underlying criminal case, the state charged petitioner with multiple crimes, including second-degree assault for hitting the complaining witness, SE. The state based the assault charge on evidence that petitioner had hit SE while they were in an apartment with another person, Parker. Petitioner admitted that he had hit SE but contended that he had done so in self-defense. He claimed that, during the incident at issue, SE had hit him repeatedly and he had hit her once to get her to stop.

         Petitioner was represented by defense counsel. Defense counsel did not hire an investigator to investigate petitioner's self-defense claim.

         Defense counsel subpoenaed Parker to testify at petitioner's jury trial. In his opening statement, defense counsel told the jury that Parker's testimony would be "consistent with what she told police," which, according to defense counsel, was that she had been in the apartment's bathroom when petitioner and SE started fighting and, when she came out, she saw SE hitting petitioner and then saw petitioner hit SE once to get her to stop. But, Parker did not testify as defense counsel said she would. Instead, she testified that, when she came out of the bathroom, SE was hitting petitioner and saying that he had hit her. Parker denied that petitioner had hit SE to make her stop hitting him, and she denied telling the police that he had done so. The jury found petitioner guilty of all charges, rejecting his self-defense claim.

         B. Post-Conviction Proceedings

         Petitioner filed a petition for post-conviction relief. The petition was later amended, and the operative petition in this case is the second amended petition.[1]

         [365 Or. 775] In the second amended petition, petitioner sought relief pursuant to ORS 138.530, which provides, in part, that a post-conviction court shall grant a petitioner relief if the petitioner establishes that, in the underlying criminal case, there was a "substantial denial" of his or her constitutional rights and that the denial rendered his or her conviction "void." Petitioner alleged that he was entitled to relief because his right to counsel, under both Article I, section 11, of the Oregon Constitution, and the Sixth Amendment of the United States Constitution, had been violated. Specifically, petitioner alleged that defense counsel had failed to provide constitutionally adequate and effective representation in three ways: by failing to employ an investigator, by failing to object to vouching by the prosecutor, and by failing to prepare petitioner to testify. Petitioner further alleged that each of the failures prejudiced his defense. See Johnson v. Premo, 361 Or. 688, 699-700, 399 P.3d 431 (2017) (stating that, to be entitled to post-conviction relief based on a violation of the right to counsel, under either the state or federal constitution, "a petitioner must show that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result").

         Regarding defense counsel's failure to employ an investigator, petitioner alleged that his "central defense was a claim of self-defense," and that defense counsel "failed to employ an investigator to investigate the charges pending against petitioner or to support his claim of self-defense." He further alleged that, as a result of defense counsel's failure to employ an investigator, his claim of self-defense "was left unsupported." In addition, petitioner identified one way that employing an investigator would have benefitted his case, asserting that, "[h]ad trial counsel employed an investigator, he would have learned there were at least two available fact witnesses, [petitioner's parents, the Ogles], who observed petitioner after the incident *** and would have testified he complained of a broken rib as a result of the [365 Or. 776] fight," which would have supported petitioner's claim that SE had hit him.

         The case proceeded to discovery, and defense counsel was deposed. During his deposition, defense counsel testified that, before petitioner's criminal trial, he knew that Parker had witnessed part of the incident and had made a statement to the police about it. Defense counsel acknowledged that a witness's testimony may vary from his or her prior statements and that hiring an investigator is useful because, if a witness changes his or her statement, the investigator can be called to impeach the witness. But defense counsel did not hire an investigator to interview Parker, even though he subpoenaed her to testify at trial and relied on her statement to the police when he made his opening statement to the jury.

         After discovery, petitioner filed a trial memorandum. In connection with his claim that defense counsel had failed to hire an investigator, petitioner reasserted that, if defense counsel had hired an investigator, "he would have learned that there were at least two available fact witnesses" to petitioner's injuries sustained in the fight with the alleged victim, specifically, the Ogles. In addition, he asserted that defense counsel should have had an investigator interview Parker "to preserve her statement and ensure defense [counsel] was knowledgeable about her testimony," and that, if defense counsel had done so, he "could have avoided an appearance of ignorance of the case before the jury, which also had a tendency to affect the prosecution against petitioner."

         Petitioner filed his trial memorandum approximately one month before trial. On the same day, he filed exhibits in support of his allegation that defense counsel's representation had been inadequate and had prejudiced him, including a declaration from Parker in support of his assertion that defense counsel's failure to employ an investigator was prejudicial because it adversely affected defense counsel's use of Parker as a witness.

         The superintendent filed a trial memorandum in response. The superintendent did not dispute that defense counsel had failed to hire an investigator to investigate [365 Or. 777] petitioner's self-defense claim. Nor did he dispute that defense counsel's opening statement was inconsistent with Parker's testimony. But, he argued that the post-conviction court "should deny the allegation that [defense counsel] was inadequate for not hiring an investigator to question Ms. Parker," because petitioner had not included that allegation in the second amended petition. In support of that argument, the superintendent cited a post-conviction statute, ORS 138.550(3), and Court of Appeals cases interpreting it, including Bowen v. Johnson, 166 Or.App. 89, 999 P.2d 1159, rev den, 330 Or. 553 (2000), and Leyva-Grave-De-Peralta v. Blacketter, 232 Or.App. 441, 223 P.3d 411 (2009), rev den, 348 Or. 114 (2010), for the proposition that any ground for relief that is not alleged in the operative petition is deemed waived.

         The superintendent also argued that, if the post-conviction court considered the Parker issue, it should reject it on the merits. He predicted that, at the upcoming trial, petitioner would not be able to prove that defense counsel's failure to hire an investigator to interview Parker was prejudicial. Thus, the superintendent addressed the merits of the issue. He did not seek a continuance to conduct additional discovery, nor did he identify any way in which he would be prejudiced if the court considered the issue.

         The case proceeded to trial. At the outset of trial, the parties and the court discussed the exhibits that the parties had submitted. The superintendent objected to some of petitioner's exhibits, but he did not object to those relating to the Parker issue, which included Parker's declaration. ...


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