Ingle v. Matteucci

315 Or.App. 416

501 P.3d 23

Matthew Daniel INGLE, Petitioner-Appellant,

v.Dolores MATTEUCCI, Superintendent, Oregon State Hospital, Defendant-Respondent.

A170009

Court of Appeals of Oregon.

Argued and submitted December 18, 2020.

October 27, 2021

Lindsey Burrows argued the cause for appellant. Also on the opening brief were Bruce A. Myers, Certified Law Student, 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 R. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

AOYAGI, J.

On appeal from a judgment denying post-conviction relief, petitioner argues that the post-conviction court erred in dismissing his petition as untimely. Petitioner acknowledges that he filed his petition over eight years after the two-year statute of limitations in ORS 138.510(3) would normally start running. He contends that it was nevertheless error to dismiss the petition, because his allegations were sufficient to raise a triable issue regarding the escape clause. Specifically, petitioner contends that his personal mental health circumstances during those eight years (as described in the petition)—which included his suffering from schizophrenia and taking psychotropic medications—were such that he could not reasonably be expected to pursue a post-conviction claim any earlier than he did. Or, to use the statutory language, petitioner contends that his claim for relief "could not reasonably have been raised" within two years of the date that the judgment of conviction was entered, ORS 138.510(3), due to his personal mental health circumstances.

In so arguing, petitioner squarely raises the question whether a post-conviction court must consider a petitioner's individual mental health circumstances—something unique to the petitioner—in applying the escape clause in ORS 138.510(3). That is fundamentally a question of statutory construction, i.e. , the enacting legislature's intent. The Supreme Court recently left this very question open in Perez-Rodriguez v. State of Oregon , 364 Or. 489, 498-99, 435 P.3d 746 (2019), recognizing that it is "not an easy" question, and resolving the case before it on other grounds.

In this case, we conclude that, although the Supreme Court has yet to finally resolve the matter, we are bound by our controlling precedent, Fisher v. Belleque , 237 Or. App. 405, 240 P.3d 745 (2010), rev. den. , 349 Or. 601, 248 P.3d 419 (2011). Petitioner contends that the Supreme Court implicitly overruled Fisher in Gutale v. State of Oregon , 364 Or. 502, 519, 435 P.3d 728 (2019), a case decided on the same day as Perez-Rodriguez , but we are not persuaded that that is so. In our view, while the issue remains open in the Supreme Court, Fisher is controlling precedent in our court and remains good law until the Supreme Court decides otherwise. Petitioner has not asked us to overrule our own precedent, under the "rigorous" standard articulated in State v. Civil , 283 Or. App. 395, 417, 388 P.3d 1185 (2017), nor are we inclined to do so sua sponte based on the arguments that have been made. That is, we are not convinced that the holding in Fisher is "plainly wrong." Id . We are also cognizant that "[s ]tare decisis is at its zenith in the area of statutory construction." State v. Merrill , 303 Or. App. 107, 119, 463 P.3d 540 (2020), adh'd to as modified on recons. , 309 Or. App. 68, 481 P.3d 441, rev. den. , 368 Or. 402, 491 P.3d 78 (2021).

For those reasons, as described in more detail below, we affirm.

STANDARD OF REVIEW

When a post-conviction court dismisses a petition as untimely on its face, as permitted by ORCP 21 A(9), we review for legal error. Zsarko v. Angelozzi , 281 Or. App. 506, 508, 385 P.3d 1239 (2016), rev. den. , 361 Or. 312, 393 P.3d 1174 (2017). Our review is limited to the face of the petition. Id. Like the post-conviction court, we must "assume the truth of all allegations in the petition and give petitioner, as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations." Id .

FACTS

Consistent with the standard of review, we "draw the facts from the petition, supplementing them with the pertinent procedural facts." Id.

In 2009, petitioner killed two people when he ran a red light while driving. Petitioner was charged with second-degree manslaughter and driving under the influence of intoxicants. He waived a jury trial, proceeded with a stipulated-facts trial, and was found guilty except for insanity (GEI) on both counts. Petitioner was placed under the jurisdiction of the Psychiatric Security Review Board and committed to the Oregon State Hospital for an indefinite period not to exceed 20 years. The judgment was entered on November 10, 2009. Petitioner did not appeal.

Over eight years later, on March 14, 2018, petitioner filed a petition for post-conviction relief, which he subsequently amended. In the operative petition, petitioner claims that he received ineffective and inadequate assistance of counsel at trial. He alleges that his trial counsel "knew or should have known" before trial that petitioner was "confused" and "unable to meaningfully track and understand conversations" due to "extremely powerful psychotropic medications" that "petitioner was provided with, and encouraged to take, in an attempt to treat his diagnosed schizophrenia." Petitioner alleges that his trial counsel nonetheless "attempted to explain the concept of the defense of [GEI] and the benefits and full consequences of that defense," which petitioner could not "fully appreciate" because of his mental condition and medicated state.

According to petitioner, his trial counsel "failed to ensure petitioner had a full understanding of what it meant to be found [GEI] before encouraging him to waive his right to a jury trial in pursuit of that outcome," whereas trial counsel exercising reasonable professional skill and judgment would have realized the likely effect of petitioner's medications, "reiterated the concept" of GEI on a level that petitioner could understand, and ensured that petitioner could "parrot the basics" of GEI back to counsel, including its consequences. Petitioner alleges that, as a result of trial counsel's errors and omissions, he did not understand the consequences of being found GEI, including that he would "likely" spend 20 years at the Oregon State Hospital. Petitioner alleges that, had he "fully comprehended" the consequences of a GEI finding, he would have insisted on a jury trial, instead of agreeing to a stipulated-facts trial.

As for the timing of his petition, petitioner acknowledges that, under ORS 138.510(3)(a), his petition normally would have had to been filed by November 10, 2011, two years after the date of entry of the judgment of conviction. Petitioner alleges that the escape clause applies, however, because, "[b]etween November 10, 2009 and November 10, 2011 (limitations period), petitioner was intellectually disabled as a result of his diagnosed schizophrenia and his forced consumption of extremely powerful psychotropic medications." Petitioner alleges that, during that two-year period, his "mental disease and consumption of prescribed medications * * * substantially impaired his ability to concentrate, to reason, to understand the legal remedies available to challenge his convictions, and to understand the legal proceedings that resulted in his imposed sentence." He further alleges that his "mental disease substantially impaired his ability to read and comprehend legal documents related to those proceedings and deprived him of the ability to appreciate, identify, allege, and support with the requisite evidence the claim for relief alleged" in his petition.¹ As a result, he asserts, "the information required to timely raise the grounds for relief alleged [in the petition] was not reasonably available to petitioner during the two-year period following entry of his judgment of convictions."

The superintendent moved to dismiss the petition as untimely under the statute of limitations in ORS 138.510(3). See ORCP 21 A(9) (allowing a party to move to dismiss a claim, before filing an answer, on the ground "that the pleading shows that the action has not been commenced within the time limited by statute").

The post-conviction court granted the superintendent's motion and dismissed the petition. In doing so, the court concluded that the allegations in the complaint, taken as true, were insufficient to trigger the escape clause. The court explained that it believed that existing Court of Appeals precedent required that result:

"The problem in your case is that my reading of what the courts that are above me tell me is that * * * just because you have a mental illness and that mental illness prevents you from being able to access the legal process, that doesn't allow me to apply the exception. * * * And the difficulty I'm having in your case is that the caselaw that is above me I don't think allows me to let the case go forward. Although one of my concerns is that there is an allegation of forced medication. But then I'm also hearing from you today that for a period of time you felt just fine. You weren't taking your medication. And for a period of time you felt like you were sufficient enough you could leave the State Hospital. So that kind of counteracts the argument that you would've been unable during that period of time to file a post-conviction petition. So it's my judgment that under the law that I [have] to grant the State's motion to dismiss.

"Now, you will have an opportunity to have my decision challenged and reviewed by the Court of Appeals. And I hope you do because there are some concerns I have about some of the decisions. The cases that I believe that [your counsel] has cited really deal with situations where someone in the legal system

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