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Court of Appeals of Oregon.

Donald L. HOWELL, aka Donald Lee Howell, Petitioner–Appellant, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Respondent.

CV110819; A149346.

Decided: August 14, 2013

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge. James N. Varner filed the brief for appellant. Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Petitioner appeals a judgment dismissing his petition for post-conviction relief. The state concedes that the post-conviction court erred and that the judgment should be reversed. We agree that the post-conviction court erred and, accordingly, reverse.

Petitioner filed a petition for post-conviction relief and, on the same day, a motion to appoint counsel. The court did not rule on petitioner's motion to appoint counsel. Instead, two days after the petition was filed, the court dismissed the petition as “[f]iled outside the statute of limitations.” As the state concedes, when a petitioner for post-conviction relief moves to appoint counsel, the post-conviction court may not dismiss the petition before appointing counsel and holding a hearing unless it dismisses the petition as meritless. Ware v. Hall, 342 Or 444, 452–53, 154 P3d 118 (2007); Kumar v. Schiedler, 128 Or.App. 572, 576, 876 P.2d 808, rev den, 316 OR 142 (1993); Rodacker v. State of Oregon, 79 Or.App. 31, 34, 717 P.2d 659 (1986). Here, however, the court did not dismiss the petition as meritless, and, on this record, it would have erred in doing so because the timeliness of the petition appears to be disputable. See ORS 138.525. The court erred in dismissing the petition on timeliness grounds before appointing counsel and holding a hearing.

Reversed and remanded.