WILLIE RAY CROSSLEY JR v. MYRICK

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Court of Appeals of Oregon.

WILLIE RAY CROSSLEY, JR., Petitioner-Appellant, v. John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A162105

Decided: January 24, 2018

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge. Ryan T. O'Connor and O'Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Dustin Buehler, Assistant Attorney General, filed the brief for respondent.

PER CURIAM

Petitioner appeals a judgment denying his claims for post-conviction relief. Petitioner filed a pro se post-conviction petition, asserting two claims. He also moved for appoint-ment of counsel, which the post-conviction court granted. Post-conviction counsel filed an amended petition, in essence alleging one of the two claims that had been raised by petitioner in his pro se petition. Defendant moved for summary judgment, asserting that petitioner's claim in the amended petition alleged only trial court error, so it was not a cog-nizable claim for post-conviction relief. Petitioner then filed a pro se notice pursuant to Church v. Gladden, 244 Or 308, 417 P2d 993 (1966), asking the court to hold a hearing “for the purpose of inquiring into appointed counsel's deficiency and refusal to introduce petitioner's claims/issues into the post-conviction court.” In petitioner's “Church motion,” he identified two issues: (1) the trial court impermissibly shackled him in front of the jury without a prior hearing to determine whether he should have been shackled, and (2) the trial court erroneously imposed an upward durational departure at sentencing. Although the court scheduled a hearing on petitioner's Church motion, before it held that hearing, the court granted defendant's summary judgment motion and entered a judgment denying petitioner's claims.

On appeal, petitioner argues that Church required the court to hold a hearing before granting judgment in defendant's favor. Defendant counters that, regardless of whether a hearing was required before the court could dis-miss petitioner's claims, we should affirm because petitioner could not demonstrate any prejudice due to the lack of a hearing—i.e., any error was harmless. See Tracy v. Nooth, 252 Or App 163, 170, 285 P3d 745 (2012), adh'd to on recons, 255 Or App 435, 299 P3d 565, rev den, 353 Or 868 (2013) (“[W]e may not reverse the post-conviction court's error if it was unlikely to have affected the outcome of petitioner's post-conviction case.”).

We conclude that the post-conviction court did not err by failing to hold a hearing in this case because a “Church motion is simply the procedural mechanism by which a post-conviction petitioner informs the court of an attorney's failure to raise issues so as to avoid the preclusive effect of ORS 138.550(3).” Lopez v. Nooth, 287 Or App 731, 735, 403 P3d 484 (2017). As we stated in Bogle v. State of Oregon, 284 Or App 882, 883-84, 395 P3d 643, rev allowed, 362 Or 281 (2017), the Supreme Court clarified in Johnson v. Premo, 355 Or 866, 876, 333 P3d 288 (2014), that

“Churchdid not require the post-conviction court to respond to petitioner's pro se claims by making the discretionary determination advocated by petitioner or to consider those claims on their merits. Rather, Church means simply that, to the extent the post-conviction court refused to consider those claims because they were not asserted through counsel, ORS 138.550(3) will not bar petitioner from pursuing them in a subsequent petition because he has followed Church's directive by bringing those claims to the attention of the post-conviction court below in this proceeding.”

Bogle, 284 Or App at 883-84. With that understanding of Church, the post-conviction court's failure to hold the hearing requested by petitioner under Church is not error.

Affirmed.

PER CURIAM