Hill v. Miller

543 P.3d 772

330 Or.App. 386

David L. HILL, Jr., Petitioner-Appellant,

v.Jamie MILLER, Snake River Correctional Center, Defendant-Respondent.

A177440

Court of Appeals of Oregon.

January 31, 2024

Argued and submitted October 31, 2023.

Malheur County Circuit Court 21CV06055; 21CV06055

Margaret Huntington argued the cause for appellant. On the opening brief were Lindsey Burrows and O’Connor Weber LLC. Also on the reply brief was O’Connor Weber, LLC.

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

Before Lagesen, Chief Judge, and Tookey, Judge, and Kamins, Judge.

LAGESEN, C. J.

₃₈₈Petitioner appeals a judgment dismissing his post-conviction petition as untimely, ORS 138.510(3), and successive, ORS 138.550(3).¹ The post-conviction court concluded that the ground for relief raised in the petition was one that petitioner could not reasonably have raised within two years of the date that his conviction was final, or in his previous petitions for post-conviction relief, such that petitioner was entitled to the benefit of the escape clauses in both ORS 138.510 and ORS 138.550. The court nevertheless dismissed the petition. Relying on our decision in Canales-Robles v. Laney, 314 Or App 413, 422, 498 P.3d 343 (2021), which construed the escape clause of ORS 138.510 as a tolling provision, the post-conviction court determined that the petition was untimely because petitioner waited more than two years to file it after the ground for relief asserted became available to petitioner. Although the post-conviction court’s decision was correct under our decision in Canales-Robles, under a subsequent decision of the Supreme Court, Ingle v. Matteucci, 371 Or. 413, 537 P.3d 895 (2023), petitioner’s demonstration that his ground for relief falls within the ₃₈₉relevant escape clause or clauses is sufficient to allow him to pursue that ground for relief. We therefore reverse and remand.

STANDARD OF REVIEW

[1, 2] We review a post-conviction court’s ruling on a motion to dismiss a petition for legal error, assuming the truth of the allegations in the petition and its attachments. Ingle, 371 Or. at 416, 537 P.3d 895; Zsarko v. Angelozzi, 281 Or App 506, 508, 385 P.3d 1239 (2016), rev. den., 361 Or. 312, 393 P.3d 1174 (2017). Pertinent to this case, we review for legal error a post-conviction court’s determination that either the ORS 138.510 escape clause or the ORS 138.550 escape clause permits a petitioner to pursue a ground for post-conviction relief that was not alleged in a timely-filed initial petition for relief. See Ingle, 371 Or. at 445-46, 537 P.3d 895 (so reviewing).

FACTUAL AND PROCEDURAL BACKGROUND

We state the relevant facts in accordance with our standard of review. Petitioner entered a stipulated plea agreement with the state. Under the terms of the plea agreement, he was entitled to credit for time served starting on the date of his arrest, June 2, 2008. That credit would reduce his time in the custody of the Department of Corrections (DOC) by 17.2 months, resulting in a total of 144 months’ incarceration in DOC custody. At sentencing, the court reminded petitioner that, under the terms of the agreement, petitioner’s sentence would be "not one day more [or] one day less" than the agreed-upon term. The court then entered a judgment reflecting the court’s intention that petitioner’s total term of incarceration include credit for time served since June 2, 2008.

Petitioner sought post-conviction relief in 2010 and 2011. He did not raise any issue regarding the credit-for-time-served component of his sentence in the 2010 and 2011 petitions, and he did not obtain any relief as a result of those petitions.

On or around March 23, 2015, DOC notified petitioner that it could not honor the part of the agreement allowing for credit for time served. Nearly six years later, on ₃₉₀February 9, 2021, petitioner filed the instant post-conviction proceeding, alleging that trial counsel was inadequate and ineffective for allowing him to enter the plea involving an agreed-upon sentence that was not enforceable.

The superintendent moved to dismiss, arguing that the petition was (a) untimely under ORS 138.510(3); and (b) successive under ORS 138.550(3). The post-conviction court granted the motion, ruling that petitioner’s ground for relief fell within the escape clauses of both statutes but that petitioner’s delay in seeking relief meant that his request was untimely under Canales-Robles.

Specifically, with respect to ORS 138.550(3), the post-conviction court determined that petitioner’s ground for relief could not reasonably have been raised by petitioner’s post-conviction lawyers before petitioner received the notice from DOC. Thus, the petition fell within the escape clause of ORS 138.550(3). See Perez v. Cain, 367 Or. 96, 113, 473 P.3d 540 (2020) (whether escape clause of ORS 138.550(3) applies turns on whether ground for relief was reasonably available to petitioner’s prior post-conviction counsel). With respect to ORS 138.510(3), the post-conviction court concluded, for the same reason, that the ground for relief was not available to petitioner within the two-year period following the date his conviction became final. See Ingle, 371 Or. at 446-47, 537 P.3d 895 (whether escape clause of ORS 138.510(3) applies turns on whether, in the circumstances that confronted the petitioner, the petitioner reasonably could have raised the ground for relief within the two-year window). Nonetheless, following our construction of the escape clause as a tolling provision in Canales-Robles and Bean v. Cain, 314 Or App 529, 497 P.3d 1273 (2021), which applied the tolling analysis set forth in Canales-Robles, the post-conviction court determined that the petition was not timely because petitioner filed it more than two years after the date on which he had notice of the fact that DOC would not effectuate the sentence in the manner intended by petitioner, the state, and the sentencing court. Petitioner appealed.

On appeal, in his opening and reply briefs, petitioner first argues that Canales-Robles was wrongly decided, to the extent that it treated the escape clause in ORS 138.510(3) ₃₉₁as a tolling provision. Petitioner further argues that he is entitled to the benefit of the escape clauses under both ORS 138.510(3) and ORS 138.550(3) because he could not reasonably have raised his credit-for-time-served claim in a timely petition under ORS 138.510(3) or in his previous post-conviction petitions, regardless of the amount of time it took him to seek relief.

In the answering brief, the superintendent argues that Canales-Robles is correct and that the post-conviction court correctly dismissed the petition as time-barred. Alternatively, the superintendent argues that the judgment of dismissal should be affirmed on the alternative ground that petitioner is not entitled to the benefit of the ORS 138.550 escape clause. The superintendent’s theory is that the legal basis and the facts supporting the DOC’s determination that it would not give effect to the sentencing court’s intended sentence would have been available to counsel who investigated the legality of the sentence, such that petitioner could have raised the issue in his initial post-conviction proceeding.

After briefing was completed in this case, the Supreme Court decided Ingle. In Ingle, the court interpreted the escape clause of ORS 138.510(3). In that case, the petitioner had not filed his petition for post-conviction within two years of the date his conviction became final, as required by ORS 138.510(3). Ingle, 371 Or. at 415, 537 P.3d 895. At issue was whether the petitioner’s mental illness, which petitioner alleged had prevented him from seeking post-conviction relief within the two-year limitations period, entitled him to the benefit of the ORS 138.510(3) escape clause. Id.

The Supreme Court concluded that if petitioner could prove the allegations about how his mental illness affected his ability to file for post-conviction relief, then petitioner would be entitled to the benefit of the escape clause. Id. at 416, 537 P.3d 895. Notably, the court did not require the petitioner to demonstrate that he filed his post-conviction petition within two years of the date on which his mental illness was no longer an impediment to filing. The court also did not otherwise construe the escape clause to function as a tolling provision.

[3] ₃₉₂On the contrary, the court explained that ORS 138.510(3) "includes a limitations period and an exception to that period." Id. at 415, 537 P.3d 895. Rejecting arguments by the state analogizing ORS 138.510(3) to other statutes of limitations, and related rules regarding claim accrual and tolling, the court observed that ORS 138.510(3) "does not contain a tolling provision; instead, it has an escape clause." Id. at 432 n 4, 537 P.3d 895. The court also observed that "there is no statute of ultimate repose for [post-conviction] claims." Id. Ultimately, the court explained that principles applicable to other statutes of limitations do not apply to the limitations period in ORS 138.510(3). Id. Rather, if a petitioner demonstrates that the escape clause applies to a particular ground for relief, then ORS 138.510(3) does not bar a petition asserting that ground for relief:

"The state’s effort to compare the statute of limitations for post-conviction petitions to other statutes of limitations is understandable, but the statute of limitations for post-conviction petitions is unique. It does not work the same way as other statutes of limitations, because its limitations period starts to run from a specific date—when a conviction becomes final—and that date is independent of when a claim ‘accrues’ in the sense that a plaintiff knows or has reason to know of a claim. That is, the post-conviction statute does not have an ordinary discovery accrual rule; instead,

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