When relief must be granted
- executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected
Source:
Section 138.530 — When relief must be granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html.
Notes of Decisions
In general
Imposition of sentence not including jail time does not excuse failure to advise defendant of maximum possible sentence. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)
This section does not permit bringing second post-conviction proceeding alleging incompetence of counsel in first proceeding as ground for post-conviction relief. Hetrick v. Keeney, 77 Or App 506, 713 P2d 688 (1986), Sup Ct review denied
Trial court’s failure to comply with ORS 135.395 did not constitute basis for post-conviction relief under this section. Dockery v. Maass, 99 Or App 219, 781 P2d 1230 (1989), Sup Ct review denied
“Fundamental fairness” is neither independent grounds for relief nor basis for affording relief where person reconsiders foregoing appeal and petitioner was not entitled to relief where codefendant had prevailed in overturning conviction. Hunter v. Maass, 106 Or App 438, 808 P2d 723 (1991), Sup Ct review denied
Where constitutional issue could reasonably have been raised at trial, but was not raised, defendant was not entitled to assert issue to obtain post-conviction relief, distinguishing Wells v. Peterson, 315 Or 233, 844 P2d 192 (1992). Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994). But see Strasser v. State of Oregon, 368 Or 238, 489 P3d 1025 (2021)
To demonstrate prejudice of constitutional magnitude, petitioner must show that act or omission had tendency to affect result of prosecution. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)
Policy is for Oregon courts to apply federal retroactivity rules to newly announced federal constitutional principles as grounds for post-conviction relief. Teague v. Palmateer, 184 Or App 577, 57 P3d 176 (2002), Sup Ct review denied
Conditional discharge is not same as judgment of conviction for post-conviction relief purposes. Velasco v. State, 293 Or App 1, 426 P3d 114 (2018), Sup Ct review denied
Claim for post-conviction relief is not barred where legal basis for claim is based on recent decision of United States Supreme Court, even if similar type of claim was earlier raised; petitioner could not reasonably have asserted grounds for relief in previous proceedings because “grounds” refers to particular legal rule asserted as basis for claim, not general type of claim. White v. Premo, 365 Or 1, 443 P3d 597 (2019)
Substantial denial of constitutional rights
Delay in imposition of enhanced penalty does not constitute denial of right of speedy trial. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)
In determining whether guilty plea was voluntarily made, record must show that accused intelligently and understandingly made plea. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied
When petitioner’s challenge is based on voluntariness of his guilty plea, court may take testimony as well as consider trial court record. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied
Pleading guilty without being advised as to parole ineligibility raises no constitutional issue. Jones v. Cupp, 7 Or App 415, 490 P2d 1038 (1971)
Because petitioner’s sentence was increased prior to his commitment in execution of judgment, no double jeopardy was involved. Scharbrough v. Cupp, 7 Or App 596, 490 P2d 529 (1971), Sup Ct review denied
Claim that juror supplied information not in evidence to other jurors during deliberations did not allege and prove that constitutional violation was material factor leading to conviction. Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148 (1993), Sup Ct review denied
Right to counsel
The state has the burden of showing the communication to petitioner of the right of “free” counsel or his independent knowledge thereof. Harris v. Cupp, 6 Or App 400, 487 P2d 1402 (1971), Sup Ct review denied
In evaluating the competence of defendant’s previous counsel, the court will apply a test of reasonable competence under the circumstances. Rook v. Cupp, 18 Or App 608, 526 P2d 605 (1974), Sup Ct review denied
Petition alleging failure by counsel to object to an improper comment, to cross-examine or at a minimum to impeach a witness on a critical fact and to argue effectively was sufficient to state a cause of action. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied
Defense counsel’s failure to investigate defendant’s alibi was arguably a dereliction of duty, but it was not prejudicial where court in post-conviction proceeding found that alibi testimony would not have been credible. Howe v. Cupp, 55 Or App 247, 637 P2d 933 (1981), Sup Ct review denied
Petitioner failed to prove decision to waive counsel was influenced by fact that counsel had not informed him that life sentence upon conviction of murder would also include imposition of mandatory minimum term. Twitty v. Maass, 105 Or App 387, 805 P2d 706 (1991)
Relief must be granted under this section if defendant proves by preponderance of evidence that: (1) neither trial judge nor counsel advised defendant of dangerous offender statute; and (2) defendant was not otherwise aware of statute’s potential effect before entry of plea. Meyers v. Maass, 106 Or App 32, 806 P2d 695 (1991)
Where defense counsel requested one acquittal-first jury instruction about lesser included offenses and failed to object to two others, assistance of counsel was inadequate. Aikens v. Maass, 122 Or App 321, 858 P2d 148 (1993), Sup Ct review denied
Where counsel offered erroneous advice on matter playing significant role in decision to accept plea bargain, counsel was inadequate. Long v. State of Oregon, 130 Or App 198, 880 P2d 509 (1994)
Misleading defendant as to right to testify was denial of effective counsel. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)
Where defense attorney has previously acted as prosecutor against defendant, prejudice is presumed only if cases have substantial connection. Smart v. Maass, 148 Or App 431, 939 P2d 1184 (1997), Sup Ct review denied
Failure of trial counsel to make adequate investigation does not entitle defendant to post-conviction relief absent showing that failure tended to affect result of trial. Carias v. State of Oregon, 148 Or App 540, 941 P2d 571 (1997)
Lack of jurisdiction
Late filing of an information in a habitual criminal proceeding does not raise the issue of jurisdiction. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)
“Jurisdiction” under this section refers to jurisdiction over defendant and charged offense and invalidity of orders and convictions supporting charge does not deprive trial court of jurisdiction. Franklin v. State of Oregon, 109 Or App 274, 819 P2d 739 (1991), Sup Ct review denied
Excessive or unconstitutional sentence
The legislative intent in the enactment of this statute was not to establish a new ground for collateral relief, but rather to codify a ground for relief previously available in habeas corpusproceedings. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)
A mere irregularity in sentencing is not a basis for relief. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)
Sentence imposed pursuant to former statute authorizing a sentence for an indeterminate term for certain sex offenders was not unconstitutionally imposed. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied
When case has been remanded to trial court for correction of judgment, petitioner may not assert challenges to judgment that were not raised in petition. State v. Henderson, 146 Or App 81, 932 P2d 577 (1997)
Post-prison supervision is part of sentence and therefore subject to challenge for lawfulness through post-conviction relief even though supervision might not yet be in effect. Lattymer v. Thompson, 170 Or App 160, 12 P3d 535 (2000), Sup Ct review denied
Where sentence resulted from stipulated sentencing agreement, petitioner may not seek relief on basis that sentence exceeds maximum allowed by law. Haney v. Schiedler, 202 Or App 51, 120 P3d 1225 (2005)
COMPLETED CITATIONS: O’Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied
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