RANDY LEE MAIDENS v. NOOTH (2017)

DEHOOG, J.

Petitioner appeals from a judgment dismissing his successive petition for post-conviction relief. He acknowl-edges that his petition was untimely, but contends that it should have been allowed under the so-called “escape clauses” of ORS 138.510(3) and ORS 138.550(3) because he did not learn of the facts underlying his claims for relief until after his first post-conviction relief proceeding had concluded.¹ As explained below, we reject that contention. Accordingly, we affirm.

The relevant facts are undisputed. In 2009, petitioner was convicted, based on his Alford pleas,² of three counts of first-degree sexual abuse. After his direct appeal, which became final in September 2011, petitioner filed a petition for post-conviction relief. That petition was denied in December 2012. Petitioner filed a second petition for post-conviction relief on February 6, 2014, and amended that petition on September 23, 2014, after counsel was appointed.³

As relevant to the issues presented on appeal, petitioner alleged in his successive petition that he was entitled to post-conviction relief because, as part of the plea agreement in his criminal case, the state had agreed to release a computer seized as evidence to his parents, and petitioner's “due process right to enforce the literal terms of the agreement was violated when the computer was released to [his ex-wife] instead.” In an attached affidavit, petitioner averred that, in March 2013, he had asked his brother whether the Prineville Police Department had released the computer to their parents yet and learned that it had not. Petitioner then wrote to the Prineville Police Department inquiring into the status of the computer. On May 3, 2013, he received a letter in response, informing him that the computer had been released to his ex-wife several years earlier, in June 2009. Petitioner's affidavit also stated that a condition of the plea agreement had been that the computer would be released to his parents only “after [his] appeal period had run” and that the agreement placed no limit on how long his parents had to obtain the computer.

The superintendent moved to dismiss the petition on two grounds. First, he asserted that petitioner's claim could reasonably have been raised in the original petition, and, therefore, it was barred as a successive petition under ORS 138.550(3). Second, he contended that the petition was untimely because it was filed outside the two-year limitation period set forth in ORS 138.510(3). The post-conviction court agreed with the superintendent as to both points and granted the motion to dismiss. The court subsequently entered a judgment denying petitioner's successive petition and dismissing the action with prejudice. Petitioner appeals that judgment.

On appeal, petitioner contends that the post-conviction court erred in dismissing his successive petition because it falls within the escape clauses of ORS 138.510(3) and ORS 138.550(3). That, petitioner asserts, is because he “could not reasonably have raised the grounds for relief earlier because he did not know that the state had breached the terms of the plea deal until after his first post-conviction relief proceeding had concluded.” (Emphasis added.) At oral argument, petitioner acknowledged that he knew of the alleged breach—that is, the release of the computer to his ex-wife—within two years after his direct appeal became final. He contends, however, that that fact is immaterial because, in his view, the two-year limitation period in ORS 138.510(3) does not apply to successive petitions. Thus, according to petitioner, the only inquiry is whether he reasonably could have raised his grounds for relief in his original petition, triggering ORS 138.550(3), and not whether he reasonably could have raised those grounds within the two-year limitation period. And, he asserts, he could not have raised the issue presented here in his original petition because that proceeding concluded in 2012, and he did not learn of the alleged breach until May 3, 2013, when he received the police department's letter in response to his inquiry. He argues that he should be “allowed to presume the state would com-ply with the plea deal” and, viewing the facts as pleaded in the petition and supporting affidavit in his favor, he “was in no position to know the facts until after 2012.”

In response, the superintendent first contends that, because petitioner had actual knowledge of his claims within the two-year limitation period, the statutory escape clause is inapplicable, and petitioner's successive petition is barred as untimely. As the superintendent explains, “[b]ecause petitioner had more than three months to file a timely successive petition for post-conviction relief before the limitations period expired, it is irrelevant that he learned about the computer's release after the court denied his initial petition.” The superintendent alternatively contends that petitioner's untimely successive petition does not, in any event, fall within the narrow scope of the escape clause, because the information necessary to support petitioner's claim was reasonably available even earlier than May 2013, when he heard back from the Prineville Police Department. The superintendent points out that the police department promptly responded to petitioner's inquiry (implying that we should infer it would have done the same if petitioner had asked about his computer earlier) and that petitioner sim-ply could have asked his parents, after the conclusion of his direct appeal, whether they had received the computer.

As explained below, we conclude that the two-year statute of limitations in ORS 138.510(3) is not, as petitioner contends, limited to original petitions for post-conviction relief, but also applies to successive petitions. Thus, given the fact that petitioner had actual knowledge of the claim asserted in his successive petition within the limitation period, we agree with the superintendent that the statute's escape clause is inapplicable. Accordingly, the post-conviction court correctly dismissed the petition as untimely under ORS 138.510(3).⁴

ORS 138.510(3) provides, in relevant part, that “[a] petition pursuant to [the Post-Conviction Hearing Act] must be filed within two years of the [date the appeal is final ⁵ ], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition[.]” (Emphases added.)

Petitioner contends that the text of the statute (in particular, the emphasized wording) compels the conclusion that the two-year limitation period applies only to an original petition and that a successive or “subsequent” petition is timely filed at any time, as long as the petitioner could not reasonably have raised the grounds for relief in the original petition. The problem with that textual argument is that it cannot be reconciled with the Supreme Court's holding in Bartz v. State of Oregon, 314 Or 353, 839 P2d 217 (1992), that the escape clause in ORS 138.510(3) is not limited to successive petitions. And, that holding—and, in particular, the court's underlying rationale—leads, inevitably, to the opposite conclusion.

In Bartz, the post-conviction court dismissed the petitioners' original petitions for post-conviction relief as untimely under ORS 138.510(2) (1989).⁶ Id. at 355. One of the petitioners contended that, although he had filed his original petition for post-conviction relief outside the then-effective 120-day limitation period, he fell within the exception of the statute—the escape clause—because he could not reasonably have known of his grounds for relief (counsel's failure to advise him of an available statutory defense) within that period. Id. at 356-57. The superintendent responded, however, that, because the untimely petition was not “successive”—that is, the petitioner had not filed an earlier, timely petition—the exception for “subsequent” or successive petitions did not apply.⁷

In construing the statute in light of that argument, the Supreme Court looked first to the text, but concluded that “the words of the statute [did] not clearly express the legislature's intention.” Id. at 357. Rather, “ORS 138.510(2) [was] ambiguous concerning whether the exception applies to all late-filed petitions, or whether it is limited to late-filed petitions filed by persons who filed an earlier, timely petition.” Id. The court also found that the legislative history did not reveal any insight as to the legislature's specific choice of wording in enacting the escape clause.⁸ Accordingly, the court turned to the general purpose of the statute, which, from the legislative history, the court gleaned was “to give persons extra time to file petitions for post-conviction relief in extraordinary circumstances.” Id. at 358. And, the court reasoned, “[t]hat purpose applies equally to persons who did or did not file an earlier, timely petition.” Id. Thus, the court held, the exception “does not require the filing of a timely ‘original or amended’ petition as a prerequisite to the filing of an untimely petition.”⁹ Id. (emphasis added).

In other words, the court concluded that the escape clause was not limited to successive petitions, but could also apply to original, untimely filed petitions. In effect, the court in Bartz interpreted the provision of what is now ORS 138.510(3) to read, in relevant part:

“A petition pursuant to [the Post-Conviction Hearing Act] must be filed within two years of the following, unless the court on hearing an untimely petition finds grounds for relief asserted which could not reasonably have been raised within the applicable limitation period[.]”10

(Replaced text in italics.) See also Verduzco v. State of Oregon, 357 Or 553, 564 n 9, 355 P3d 902 (2015) (explaining that, although “[r]ead literally,” the escape clause language that the legislature borrowed from the bar against successive petitions in ORS 138.550(3) “does not fit easily within the prohibition against untimely petitions,” the court had resolved that tension in Bartz).

It necessarily follows from Bartz's interpretation of the statute that not only original petitions, but also successive petitions, are subject to the statutory limitation period before the exception may apply. In other words, the filing of a timely original petition does not somehow excuse the requirement that a successive petition also be filed within the two-year limitation period, unless it otherwise meets the requirements of the escape clause. That is because, for successive petitions that can still be filed within the two-year limitation period, the need for a provision that “give[s] persons extra time *** in extraordinary circumstances” is not present. See Bartz, 314 Or at 358. As a result, we see no reason for the legislature to have intended the escape clause of ORS 138.510(3) to encompass otherwise timely, but successive, petitions. Accordingly, we conclude that the two-year limitation period under ORS 138.510(3) applies to all petitions for post-conviction relief, whether original or successive, unless the petitioner establishes that the grounds for relief asserted could not reasonably have been raised within that time.¹¹

We acknowledge that, in Verduzco, 357 Or at 565, the court commented, in the course of discussing the identically worded escape clause of ORS 138.550(3), that, because the legislature had amended ORS 138.510 in 1993, after Bartz, we “cannot assume that Bartz provides the final answer on the meaning of ORS 138.510(3), as amended in 1993.”¹² However, the 1993 legislature left intact the pertinent wording of ORS 138.510(3), and we have continued to apply other aspects of Bartz's interpretation of ORS 138.510(3) since. See, e.g., Gutale v. State of Oregon, 285 Or App 39, 41, 44, 395 P3d 942, rev allowed, 361 Or 885 (2017) (adhering to Bartz's interpretation of the escape clause language, “could not reasonably have been raised,” despite the court's remark in Verduzco); Stahlman v. Mills, 238 Or App 606, 613, 243 P3d 786 (2010), rev den, 349 Or 654 (2011) (following Bartz's construction of what the legislature intended by escape clause language of ORS 138.510); Benitez-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001), rev den, 334 Or 76 (2002) (holding that Bartz governed, regardless of whether the 1993 amendments applied to the petitioner's petition). Moreover, petitioner has not pointed to any legislative history, or, indeed, presented any argument to per-suade us that the legislature intended the words to mean something other than the Supreme Court held in Bartz. See, e.g., Mastriano v. Board of Parole, 342 Or 684, 693, 159 P3d 1151 (2007) ( “[W]e generally presume that the legislature enacts statutes in light of existing judicial decisions that have a direct bearing on those statutes.”). In these circumstances, we are not inclined to second-guess Bartz. As we said recently in Gutale, 285 Or App at 44, that is a question best left to the Supreme Court.¹³

Given the court's interpretation of ORS 138.510(3) in Bartz, we readily conclude that petitioner's successive petition here was untimely. Petitioner admits that he knew of the grounds for relief asserted in that petition—the state's alleged breach of the plea agreement—by at least May 2013, which was within two years after his appeal was final. Therefore, it is irrefutable that petitioner could reasonably have raised those grounds for relief within the required two-year limitation period of ORS 138.510(3). Accordingly, the escape clause does not apply.

Affirmed.

FOOTNOTES

1.   ORS 138.510(3) provides:“A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.“(c) If a petition for certiorari to the United States Supreme Court is filed, the later of:“(A) The date of denial of certiorari, if the petition is denied; or“(B) The date of entry of a final state court judgment following remand from the United States Supreme Court.”(Emphasis added.)ORS 138.550(3) provides, in part:“All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.”(Emphasis added.)

2.   “An Alford plea is a guilty plea in which the defendant does not admit com-mission of the criminal act or asserts that he is innocent. In such a situation, the trial court must determine that there is a factual basis for the plea.” State v. Sullivan, 197 Or App 26, 28 n 1, 104 P3d 636 (2005), rev den, 340 Or 673 (2006) (citing North Carolina v. Alford, 400 US 25, 91 S Ct 160, 27 L Ed 2d 162 (1970)).

3.   For convenience, we refer to petitioner's first petition as an original petition and his amended second petition—the petition at issue on appeal—as a successive petition. See Verduzco v. State of Oregon, 357 Or 553, 561, 355 P3d 902 (2015) (“[B]ecause this is petitioner's second petition, it is, by definition, successive.”).

4.   In light of that conclusion, we do not consider the superintendent's alter-native argument that petitioner failed to show that he could not reasonably have raised his claim earlier and that the escape clause, therefore, did not apply.

5.   The time from which the two-year period is measured depends on whether the petitioner has filed an appeal, a petition for certiorari, or both, in the underlying criminal case. See 288 Or App at 38 n 1 (quoting ORS 138.510(3) in full). Here, because petitioner filed an appeal, but not a certiorari petition, the limitation period, if applicable, would run from the date of the final Oregon appellate judgment, which issued in September 2011.

6.   ORS 138.510(2) (1989) provided that “[a] petition pursuant to [the Post-Conviction Hearing Act] must be filed within 120 days of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition[.]” (Emphasis added.) Thus, although the applicable limitation period was different—the legislature expanded the time for filing a petition from 120 days to two years in 1993, see Or Laws 1993, ch 517, § 1—the statutory text that the court construed in Bartz, was, in all material respects, identical to the current version of ORS 138.510(3) at issue in this case. (The escape clause was renumbered from subsection (2) to subsection (3) as a consequence of later amendments to ORS 138.510. See Or Laws 1999, ch 1055, § 7; Or Laws 2007, ch 292, § 1. None of those amendments have any bearing on our analysis here.)

7.   A majority of this court had concluded that it did apply to original petitions, interpreting the provision “to permit a petitioner to file a late petition when-ever the petitioner alleges and proves that the grounds for relief asserted could not reasonably have been raised within 120 days after the petitioner's conviction became final.” Bartz, 314 Or at 357. The dissent disagreed with that position, reasoning that “ ‘the language of [ORS 138.510(2)] makes the availability of any extraordinary relief expressly contingent on the filing of an original timely petition.’ ” Id. (quoting Bartz v. State of Oregon, 110 Or App 614, 617-18, 825 P2d 657 (1992) (Butler, P. J., dissenting) (brackets and emphasis in original)).

8.   The court observed that the text was taken verbatim from ORS 138.550(3), and “[t]he legislative committees involved did not discuss the appropriateness of that wording in this context.” Bartz, 314 Or at 357-58 (footnote omitted).

9.   Ultimately, the court in Bartz held that the petitioner's claim did not satisfy the escape clause because the legislature intended it to be “construed narrowly” to apply only to “information that did not exist or was not reasonably available” to the petitioner. 314 Or at 359. And, the information necessary to the petitioner's claim—that is, the statutes pertaining to his criminal offense—had always been available to him, even if he was not aware of the information. Id. at 360.

10.   We had reached essentially the same conclusion a few months earlier in Fine v. Zenon, 114 Or App 183, 187, 834 P2d 509 (1992), holding that the term “subsequent petition” as used in ORS 138.510(2) (1989) “means a post-conviction petition that is filed after the expiration of the applicable *** limitation period.” We explained that, if a timely petition were a “prerequisite to the filing of an untimely petition that raises meritorious issues that could not reasonably have been raised” within the limitation period, “prisoners would be encouraged to file timely, but frivolous, petitions, so that they could preserve a forum for untimely petitions,” an “absurd result that would completely undermine the legislature's purpose.” Id. at 186-87; see also Brown v. Baldwin, 131 Or App 356, 359 n 2, 885 P2d 707 (1994), rev den, 320 Or 507 (1995) (recognizing that Fine and Bartz adopted the same construction of the statute).Petitioner's proposed construction of ORS 138.510(3) in this case would also create an absurd result: If the two-year limitation period is understood to apply only to an original petition, prisoners would be encouraged to file timely, but frivolous, petitions in order to eliminate the two-year filing requirement with respect to any successive petitions, thereby undermining the purpose of the statute of limitation requirement.

11.   We note that petitioner limits his argument to the contention that the two-year limitation under ORS 138.510(3) does not apply to his successive petition; he does not contend that he could not reasonably have filed within the four months left in the original two-year limitations period by the time he heard back from the police.

12.   As noted earlier, in 1993, the legislature changed the limitation period from 120 days to two years.

13.   In Gutale, the petitioner urged us to overrule our decision in Benitez-Chacon, in which we had applied Bartz's narrow construction of what the legislature meant by the “could not reasonably have been raised” language in ORS 138.510(3). 285 Or App at 41. We declined that invitation—despite the Supreme Court's comment in Verduzco—concluding that such a challenge was properly directed to the Supreme Court. Id. at 44 (citing Chavez v. State of Oregon, 283 Or App 788, 799, 391 P3d 801, rev allowed, 361 Or 800 (2017) (“[W]e are not in a position to overrule the Supreme Court, nor are we inclined to revisit our own well-considered opinion to the extent that it was based on those earlier Supreme Court cases.”)).

DEHOOG, J.