Summary
The Oregon Supreme Court addresses two consolidated post-conviction relief cases involving a represented petitioner’s pro se Church v. Gladden motions and a successive post-conviction petition. The court holds that when a petitioner asserts that appointed counsel is failing to raise a ground for relief, the post-conviction court must determine whether counsel’s failure reflects a lack of reasonable professional skill and judgment and, if so, exercise discretion to replace or instruct counsel. The court also affirms dismissal of the successive petition under ORCP 21 A(3), concluding that the post-conviction court did not plainly err in applying that rule.
Topics
Practice areas
Questions Presented
- What must a post-conviction court do when a represented petitioner files a Church motion asserting that appointed counsel has failed to raise a ground for relief and asking the court to replace or instruct counsel?
- What must a petitioner establish to prevail on a Church motion?
- Does filing a Church motion prevent ORS 138.550(3) from barring the petitioner from raising the identified grounds in a subsequent post-conviction case?
- Did the post-conviction court plainly err by dismissing the second post-conviction case under ORCP 21 A(3) because another action involving the same parties and cause was pending?
Holdings
- A proper Church motion informs the post-conviction court that appointed counsel has failed to assert a ground for relief and asks the court either to replace counsel or to instruct counsel to assert that ground. The motion does not authorize hybrid representation or repeated pro se filings concerning ordinary disagreements with counsel.
- To prevail on a Church motion, the petitioner must establish that counsel failed to raise a ground for relief and, in doing so, failed to exercise reasonable professional skill and judgment. The relevant inquiry is whether the complaint about counsel is legitimate, not whether the proposed ground for relief is itself supported by fact and law.
- Filing a Church motion does not preserve the identified grounds for assertion in a later post-conviction case or avoid claim preclusion under ORS 138.550(3). The purpose of the motion is to have the grounds raised in the current post-conviction case.
- Petitioner failed to establish plain error in the post-conviction court's dismissal of Bogle v. Nooth under ORCP 21 A(3), which permits dismissal when another action is pending between the same parties for the same cause.
Key quotations
“The purpose of such a motion is for petitioner to seek to have counsel raise the ground for relief in the current post-conviction case; it is not to enable the petitioner to avoid claim preclusion under ORS 138.550(3) and raise the ground in a subsequent post-conviction case.” (at 458)
“Thus, the inquiry that a post-conviction court must make in response to a Church motion is whether the petitioner's complaint about counsel is legitimate.” (at 473)
“The remedies that Church identifies-replacement or instruction of counsel-would result in the grounds for relief being raised in the current post-conviction case, not preserved for a future case.” (at 477)
Factual background
Petitioner pleaded guilty to burglary and assault and received probation under a plea agreement providing for a 72-month prison sentence if probation were revoked. After the trial court revoked probation and imposed the agreed prison sentence, petitioner filed a post-conviction case alleging inadequate representation in the plea and probation-revocation proceedings. While represented by appointed post-conviction counsel, petitioner filed pro se motions seeking to assert additional grounds for relief and asking the court to replace or instruct counsel. He also filed a second post-conviction petition raising claims concerning the same underlying proceedings.
Procedural history
The post-conviction court denied relief in Bogle v. State after rejecting petitioner's pro se motions and determining that counsel had adequately represented petitioner. The Oregon Court of Appeals affirmed, reasoning that petitioner could raise the pro se grounds in a later post-conviction case. While that case was pending, petitioner filed Bogle v. Nooth; the post-conviction court dismissed it under ORCP 21 A(3) and ORS 138.550(3), and the Court of Appeals affirmed under ORCP 21 A(3). The Oregon Supreme Court allowed review in both cases, consolidated them, affirmed the Court of Appeals and circuit court decisions, and rejected the Court of Appeals' reasoning concerning the effect of Church motions on successive claims.