Gutale v. State

364 Or. 502

435 P.3d 728

Abdalla Dahir GUTALE, Petitioner on Review,

v.STATE of Oregon, Respondent on Review.

CC C131617CV (SC S065136)

Supreme Court of Oregon.

Argued and submitted March 7, 2018.

February 28, 2019

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

Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, and Nelson, Justices, and Kistler, Senior Justice pro tempore, and Roger DeHoog, Judge of the Court of Appeals, Justice pro tempore.^**

NELSON, J.

A petition for post-conviction relief "must be filed within two years" of the conviction becoming final, unless the petition falls within the escape clause. ORS 138.510(3). A petition falls within the escape clause if the "grounds for relief asserted *** could not reasonably have been raised" within the limitation period. Id. This case concerns the meaning of the escape clause.

Here, petitioner alleged in a petition for post-conviction relief that his trial counsel had failed to inform him of the immigration consequences of his guilty plea to a class A misdemeanor and, through that omission, led petitioner to believe that there would be no immigration consequences. Based on that alleged failure, petitioner asserted that his trial counsel was constitutionally inadequate and ineffective under the state and federal constitutions. See Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (requiring counsel to inform a criminal defendant of clear immigration consequences of a plea and, where consequences are not clear, to advise that plea may carry a risk of adverse immigration consequences).

The petition was filed outside the two-year limitations period. But petitioner alleged that his petition fell within the escape clause because he could not reasonably have known of his grounds for post-conviction relief within the limitations period. He based that allegation on the fact that neither trial counsel nor the sentencing court gave him any indication that his plea could carry immigration consequences, even when petitioner stated, on the record, that he was pleading guilty in part because he wished to travel and become a United States citizen. Petitioner alleged that he learned of counsel's inadequacy only when he was placed in deportation proceedings, after the statute of limitations had run.

The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed, based on the principle that "persons are assumed to know laws that are publicly available and relevant to them," including relevant immigration law. Gutale v. State of Oregon , 285 Or. App. 39, 42, 395 P.3d 942 (2017) (citing Bartzv. State of Oregon , 314 Or. 353, 839 P.2d 217 (1992) ; Benitez-Chacon v. State of Oregon , 178 Or. App. 352, 37 P.3d 1035 (2001) ). We allowed review to determine the proper meaning and scope of the escape clause. For the reasons set out below, we reverse the decisions of the post-conviction court and the Court of Appeals.

I. BACKGROUND

We take the historical facts from the allegations in petitioner's pleadings and attachments, including petitioner's response to the state's motion to dismiss. See Verduzco v. State of Oregon , 357 Or. 553, 555 n. 1, 355 P.3d 902 (2015) (taking undisputed facts from petitioner's pleadings and attachments). Petitioner is a refugee from Somalia who arrived in the United States in 2003, when he was in his early teens. In April 2010, at the age of 20, petitioner was charged with various crimes after he was discovered in a car having sex with a 16-year-old girl. Petitioner pleaded guilty to one count of sex abuse in the third degree, a class A misdemeanor, and the remaining charges were dismissed.

At the sentencing hearing that followed, petitioner stated that he was pleading guilty in part because he "really wan[ted to] travel" and to obtain his United States citizenship. The court sentenced petitioner to two years of probation and seven days in custody with credit for time served. The court ordered petitioner to register as a sex offender, but told him that if he successfully completed probation, it would "remove that requirement."

Petitioner's trial counsel was required under Padilla to provide petitioner with information regarding the potential immigration consequences of his plea. Padilla was decided by the United States Supreme Court a couple of months before petitioner's sentencing. And, under ORS 135.385(2)(d), trial courts are required to inform noncitizen defendants who plead guilty that "conviction of a crime may result *** in deportation, exclusion from admission to the United States or denial of naturalization." Despite petitioner's statement at sentencing that he was pleading guilty so that he could travel and become a United States citizen, neither trial counsel nor the court gave petitioner any indication that his plea subjected him to immigration consequences. Petitioner's judgment of conviction was entered on June 3, 2010.

Just over two years later, on June 4, 2012, Immigration and Customs Enforcement (ICE) agents detained petitioner. In March 2013, petitioner filed for post-conviction relief, alleging that his trial counsel had been ineffective for failing to advise him of the immigration consequences of his plea. In an affidavit attached to his petition for post-conviction relief, he stated that his trial counsel had never discussed with him the immigration consequences of his guilty plea. At the time of his plea, petitioner was "unaware that [he] could be deported as a result of [his] sex abuse conviction." He remained "unaware that [he] could be deported until [he] was taken into ICE custody on June 4, 2012." He added, "I certainly would have filed within the two-year statute of limitations had I been informed that I could be deported as a result of my sex abuse conviction."

The state moved to dismiss, arguing that the petition was barred by the two-year statute of limitations. Petitioner responded that he did not know that counsel had been ineffective until he was placed in deportation proceedings and learned, at that time, that he had pleaded to an offense that made him deportable. He further argued that, based on the actions of his counsel and the trial court, he had no reason to suspect either that he would suffer immigration consequences or that his counsel had failed to provide him with legally-required advice.

At a hearing on the state's motion to dismiss, the post-conviction court made clear its view that, if petitioner's allegations were true, then he would have a strong claim for ineffective assistance of counsel under Padilla . The court nevertheless granted the state's motion, concluding that the information underlying petitioner's claim "would have been available" to petitioner because Padilla "already had been decided."¹

Petitioner appealed. In considering petitioner's argument that he could not reasonably have known about his trial counsel's failings before being taken into ICE custody, the Court of Appeals relied on this court's decision in Bartz and the Court of Appeals' application of Bartz in Benitez-Chacon . In Bartz , the petitioner filed an untimely petition alleging that his trial counsel had been ineffective for "fail[ing] to advise him of an available statutory defense." 314 Or. at 357, 839 P.2d 217. The petitioner further alleged that, based on his trial counsel's failure, he could not reasonably have known of that defense within the limitations period. This court rejected that argument. The court held that, because "it is a basic assumption of the legal system that the ordinary means by which the legislature publishes and makes available its enactments are sufficient to inform persons of statutes that are relevant to them," the statutes pertaining to the petitioner's crime of conviction "were reasonably available to [the petitioner] when his conviction became final." Id . at 359-60, 839 P.2d 217 (citing Dungey v. Fairview Farms, Inc. , 205 Or. 615, 621, 290 P.2d 181 (1955) for proposition that "every person is presumed to know the law").

The petitioner in Benitez-Chacon filed an untimely petition alleging that her trial counsel had "failed to inform her fully and adequately of the immigration consequences of a no contest plea." 178 Or. App. at 354, 37 P.3d 1035. She alleged as well that, because her counsel had not fully informed her, she could not reasonably have known of the immigration consequences within the limitations period. The Court of Appeals relied on Bartz and rejected that argument. According to the Court of Appeals, "If the petitioner in Bartz was presumed to know the law based on the public nature of legislative enactments, so must petitioner in this case be presumed to have had knowledge of the relevant immigration statutes and rules." Id. at 357, 37 P.3d 1035.

In this case, petitioner is in essentially the same position as the petitioner in Benitez-Chacon , and he argued to the Court of Appeals that it should overrule its decision in that case. The court declined to so, concluding that the result in Benitez-Chacon was dictated by this court's decision Bartz . Gutale , 285 Or. App. at 44, 395 P.3d 942. The court held that petitioner could not obtain relief from the statute of limitations because he was presumed to know the immigration law and United States Supreme Court case law that was relevant to his claim. Id. at 42-43, 395 P.3d 942. As a result, the Court of Appeals affirmed the post-conviction court's dismissal. Id. at 44, 395 P.3d 942 ("[W]e adhere to Benitez-Chacon and affirm the post-conviction court's ruling that the grounds for relief asserted in the petition do not fall within the escape clause."). Petitioner then sought review in this court,...