Bohanan v. Amsberry

297 Or.App. 739

444 P.3d 515

Rick Roy BOHANAN, Petitioner-Appellant,

v.Brigitte AMSBERRY, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A165661

Court of Appeals of Oregon.

Submitted June 1, 2018.

May 30, 2019

Rick Bohanan filed the briefs for appellant pro se.

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

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

TOOKEY, J.

In this proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680, petitioner appeals a limited judgment imposing filing 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, 441 P.3d 609 (2019). We review petitioner’s arguments accordingly.

The pertinent facts are not in dispute. Petitioner filed a petition for post-conviction relief pursuant to ORS 138.510 to 138.680. Along with his petition, petitioner filed a motion requesting the "waiver or deferral of all filing 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 filing fee." The order further provides that "[t]he filing 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 "financially eligible person" pursuant to ORS 138.590, "the executive director of the public defense services is required to pay [petitioner’s] filing fee," not petitioner. Second, petitioner contends that the post-conviction court "imposed a $ 252 monetary filing 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 filing 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 filing 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 filing fee established under ORS 21.135 at the time of filing a petition under this section."

ORS 138.560(1) thus establishes a filing 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 filed, 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 *** may proceed as a financially eligible person pursuant to this section upon order of the circuit court ***.

"(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding ***, including, but not limited to, the filing fee required by ORS 138.560 ***. ***

"*****

"(6) When a petitioner has been ordered to proceed as a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court *** shall be paid by the public defense services executive director from funds available for the purpose. ***

"*****

"(8)(a) When a petitioner has been authorized to proceed as a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560, are waived.

"(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner’s trust account if the petitioner is an inmate in a correctional facility."

Thus, for petitioners who are "unable to pay the expenses of a proceeding," ORS 138.590 creates an exception to the requirement under ORS 138.560(1) that the filing fee be paid at the time the petition is filed. ORS 138.590(1), (8). In that circumstance, "all court fees in the circuit court" other than the filing fee are waived; the filing fee, however, "is not waived but may be drawn from, or charged against, the petitioner’s trust account if the petitioner is an inmate in a correctional facility." ORS 138.590(8)(b). Consequently, ORS 138.590(8)(b) authorizes the post-conviction court to do what it did in this case—viz. , order that petitioner’s filing fee be drawn from and charged against petitioner’s inmate trust account. Baldeagle v. Lampert , 185 Or. App. 326, 332 n. 1, 59 P.3d 545 (2002) (noting " ORS 138.590(8)(b) gives the court the right to collect the filing fee from petitioner’s inmate trust account").

The legislative history of ORS 138.560 and ORS 138.590 confirms that that is the correct understanding of the statutory scheme governing filing fees for proceedings for post-conviction relief brought pursuant to ORS 138.510 to 138.680. ORS 138.560 and ORS 138.590 were amended in 1995 by House Bill (HB) 2492 (1995). Or Laws 1995, ch 657, §§ 4-5. Prior to that amendment, ORS 138.560 did not require that petitioners pay a filing fee and ORS 138.590 provided for waiver of "all fees in the circuit court" for indigent petitioners. ORS 138.560 (1993) ; ORS 138.590(7) (1993).

But in 1995, the legislature decided to make a change and passed HB 2492. HB 2492 amended ORS 138.560 to require that petitioners petitioning for post-conviction relief pay "a $ 25 dollar filing fee at the time of filing a petition," except "as otherwise provided in ORS 138.590."¹ Or Laws 1995, ch 657, § 4. HB 2492 also amended ORS 138.590 to provide that, when "a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner’s trust account if the petitioner is an inmate in a correctional facility." Id. § 5.

Testifying before the Senate Judiciary Committee in support of HB 2492, then Representative Kevin Mannix explained "[t]he problem that we’re trying to address [in HB 2492] is simply this: a person who is incarcerated is usually indigent and will qualify to file petitions with the court as an indigent and that means that the person does not have to pay anything." Tape Recording, Senate Judiciary Committee, HB 2492, May 16, 1995, Tape 167, Side A (statement of Rep Mannix). Representative Mannix explained that this was a problem because many of the petitions filed by inmates were "frivolous" and those frivolous petitions required the "the state to use attorney time and require[d] the court to use court time to deal with [these petitioners’] complaints." Id. Representative Mannix also noted that there were no provisions at that time

"for the court to say, although you are technically indigent, we are going to say that since you do have some resources and since you already are provided room and board courtesy of the state or the county that there are some resources that you are going to have to tap into if you want to use court time."

Id. Representative Mannix further explained:

"The[ ] provisions [added by HB 2492] say that the state can tap into [an inmate’s] canteen account, which usually has 25, 50, 75 dollars in it, in order to pay for [the inmate’s] access to the court and allows the government to have a lien on the canteen account for that amount.

"In effect, it is requiring the inmates to be serious enough about going to court to be willing to put their canteen accounts in jeopardy to proceed with the court proceeding."

Id.

In support of HB 2492, Representative Mannix also provided the Senate Judiciary Committee with a letter from Marion County Circuit Court Judge Paul Lipscomb.² In the letter, Judge Lipscomb explained that he was "enthusiastic about those sections of the bill which attempt to put the brakes on the spiraling growth of the post conviction and habeas corpus cases"...