Palmer v. State of Oregon , 121 Or. App. 377 ( 1993 )

De MUNIZ, J.

Petitioner appeals a judgment that dismissed his petition for post-conviction relief on the ground that his petition did not state a claim for relief. We affirm in part and reverse in part.

In 1988, petitioner was convicted of unlawful possession of a firearm. ORS 166.250. We affirmed his conviction without opinion, and the Supreme Court denied review on October 3,1989. State v. Palmer, 97 Or App 588, 778 P2d 515, rev den 308 Or 405 (1989).

On July 13, 1990, petitioner filed a petition for post-conviction relief. In his third amended petition, he alleged two claims for relief. In the first claim, he alleged that his trial counsel was constitutionally inadequate, because the lawyer did not make a particular argument in a motion for judgment of acquittal. In the second claim, he alleged that ORS 166.250 is unconstitutional, because it does not define the term “concealed.” The post-conviction court allowed defendant’s demurrer, dismissed the petition and denied petitioner leave to re-plead.

Defendant argues, for the first time on appeal, that the petition was untimely¹ and that we may affirm the post-conviction court’s judgment on that basis.² State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988). The record reveals that petitioner did file his original petition more than 120 days after his direct appeal became final.

The limitation period found in ORS 138.510(2) is a statute of limitations; it is not a limitation on the jurisdiction of the post-conviction court. See Mueller v. Benning, 314 Or 615, 619, 841 P2d 640 (1992); Boone v. Wright, 314 Or 135, 137, 836 P2d 737 (1992). Unless otherwise provided for in the Post-Conviction Hearing Act, the Oregon Rules of Civil Procedure apply in post-conviction proceedings. Mueller v. Benning, supra, 314 Or at 621 n 6. Defendant could have raised the Statute of Limitations as an affirmative defense in an answer or in a motion to dismiss. ORCP 19B; ORCP 21A(9). Defendant did neither, and thereby waived that defense. ORCP 21G(2).

Allowing defendant to raise the Statute of Limitations for the first time on appeal would deprive petitioner of any opportunity to present evidence that would show why the petition raises grounds for relief that could not reasonably have been raised in a timely fashion. ORS 138.510(2). Defendant may not do so. Scoggins v. State Construction, 259 Or 371, 381, 485 P2d 391 (1971) (Bryson, J., dissenting). We were wrong when we concluded otherwise in De La Cruz v. State of Oregon, 111 Or App 654, 825 P2d 296 (1992), and we overrule that decision now.

We turn to petitioner’s claim that his trial counsel was inadequate. In a post-conviction case involving the adequacy of trial counsel, the petitioner must show

“by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result.” Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1992).

See also Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981). Petitioner alleged that his lawyer was constitutionally deficient, because his motion for judgment of acquittal did not include an argument that the state failed to prove that the gun was concealed on petitioner’s person.³ That allegation specifically identified a shortcoming in his attorney’s performance: the failure to assert that the state had failed to prove an element of the offense with which he was charged. That allegation, if true, would have required the trial court to grant his motion for a judgment of acquittal.

Defendant opines that there is little likelihood the trial court would have granted a motion for judgment of acquittal on the ground that the gun was under petitioner’s leg and not “upon” his person. Defendant’s opinion on petitioner’s prospects for success is irrelevant to the question of whether the petition states a claim. It does, and petitioner is entitled to a hearing on the merits of that claim.⁴ The court erred by dismissing it.

We next address petitioner’s claim that ORS 166.250 is unconstitutionally vague, because it does not define the term “concealed.” Grounds for post-conviction relief are enumerated in ORS 138.530, which provides:

“(1) Post-conviction relief pursuant to [the Post-Conviction Hearing Act] shall be granted by the court when one or more of the following grounds is established by the petitioner:

“(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.

“(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.

“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.

“(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.”

Defendant contends that petitioner cannot raise his constitutional challenge for the first time in a post-conviction proceeding, because he does not allege that his previous failure to raise that issue was caused by inadequate assistance of trial or appellate counsel. ORS 138.550(1) expressly provides that the availability of post-conviction relief is not affected by the failure to raise an issue in the proceedings that resulted in the conviction.⁵

In contrast, failure to raise an issue in a direct appeal may bar a petitioner from obtaining post-conviction relief. ORS 138.550(2) provides, in part:

“When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for [Post-Conviction Relief] unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.”

Petitioner did seek direct appellate review of his conviction, but he did not challenge the constitutionality of ORS 166.250 in that proceeding. In his petition, he alleged that he could not have raised the constitutional issue in his direct appeal, “because it was not an issue preserved by objection in the trial record.” Petitioner is correct; unpreserved errors generally cannot reasonably be raised in a direct appeal. ORAP 5.45(2); State v. Jensen, 313 Or 587, 598, 837 P2d 525 (1992).

The question remains whether petitioner may raise the unpreserved issue in this post-conviction proceeding. North v. Cupp, 254 Or 451, 461 P2d 271 (1969), cert den 397 US 1054 (1970), appears to stand for the proposition that a petitioner may not raise an unpreserved constitutional issue in post-conviction proceedings unless trial or appellate counsel were inadequate. However, a close examination of North reveals that the petitioner in that case failed to assert any of the enumerated grounds for post-conviction relief. He had neither objected to the admission of certain evidence at trial, nor assigned error to its admission in his unsuccessful direct appeal. He then filed a petition for post-conviction relief, in which he alleged that the search for and seizure of that evidence violated the Fourth Amendment.

The admission of evidence that was seized in violation of the Fourth Amendment does not violate the Fourth Amendment, United States v. Calandra, 414 US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974), and the petitioner in North, supra, did not contend that its admission violated Article I, section 9, of the Oregon Constitution. See State v. McMurphy, 291 Or 782, 635 P2d 372 (1981).⁶ The petitioner in North did not allege that the admission of that evidence constituted a substantial denial of any of his constitutional rights. ORS 138.530(l)(a).

Although the failure to object to evidence seized in violation of the Fourth Amendment may be the result of inadequate assistance of counsel, the petitioner in North did not allege that either trial or appellate counsel were inadequate. Thus, the court concluded:

“When a petitioner has a competent attorney who is not guilty of fraud and all the circumstances are such that the attorney would reasonably have been expected to object to constitutionally defective evidence, there is nothing unfair in asserting in post-conviction proceedings the procedural rule requiring a contemporaneous objection. There is no substantial denial of a constitutional right.” 254 Or at 459.

Because the petitioner did not allege a substantial denial of any constitutional right, he was not entitled to post-conviction relief under ORS 138.530(l)(a), and he did not contend that he was entitled to relief under any of the other grounds that are enumerated in ORS 138.530.

In contrast, petitioner in this case did assert one of the other enumerated grounds by alleging that ORS 166.250 is unconstitutional. ORS 138.530(l)(d). Nothing in ORS 138.510 requires petitioner to establish that trial or appellate counsel were inadequate in order to raise a constitutional challenge to the criminal statute for the first time in post-conviction proceedings. Cf. Wells v. Peterson, 315 Or 233, 844 P2d 192 (1993). (Petitioner may raise ORS 138.530(l)(c) challenge to unlawful sentence for the first time in post conviction, even though trial counsel was not inadequate.) Petitioner is only required to establish that the challenge could not reasonably have been raised in the direct appeal. ORS 138.550(2). That requirement is satisfied if the issue was not preserved. The reason why the issue was not preserved is irrelevant.

Although petitioner is entitled to challenge the constitutionality of ORS 166.250, we see no reason to remand to the post-conviction court for a hearing on that claim. Petitioner’s challenge to the statute is a facial one, and there is no need to develop an evidentiary record to resolve the legal issue that he raises. By dismissing the second claim, the post-conviction court, in effect, declared its conclusion that ORS 166.250 is not void for vagueness. Therefore, the validity of the statute is properly before us.

Petitioner complains that the term “concealed” in ORS 166.250 is not defined. Several courts have defined the term and have invariably concluded that a weapon is “concealed” if it is not discernible by ordinary observation.⁷ We are persuaded that the term “concealed” in ORS 166.250 is “sufficiently explicit [by itself] to inform those who are subject to it of what conduct on their part will render them liable in penalties.” State v. Plowman, 314 Or 157, 160, 838 P2d 558 (1992); Or Const, Art I, §§ 20, 21. The absence of a statutory definition for the term “concealed” in ORS 166.250 does not render that statute void for vagueness.

Judgment on the first claim reversed; judgment on the second claim affirmed.

1 ORS 138.510(2) provides, in part:

“A petition [for post-conviction relief] must be filed within 120 days of the following, unless the court on heai'ing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.”

2 Defendant contends that it did raise the issue in its demurrer to petitioner’s amended petition. However, defendant waived the statute of limitations as a possible defense by not asserting it in response to petitioner’s third amended petition. Simpson v. Simpson, 83 Or App 86, 89, 730 P2d 592 (1986), rev den 303 Or 454 (1987).

3 ORS 166.250(1) provides, in part:

“[Al person commits the crime of unlawful possession of a firearm if the person knowingly:

“(a) Carries any firearm concealed upon the person, without having a license to carry the firearm * *

In his affidavit, petitioner swore that the gun was “on the car seat partially wedged under [hisl left leg.”

4 We express no opinion on the merits of petitioner’s claim.

5 ORS 138.550(1) provides:

“The failure of petitioner * * * to have raised matters alleged in the petition at the trial of the petitioner, shall not affect the availability of relief under [The Post-Conviction Hearing Actl.”

6 In State v. McMurphy, supra, 291 Or at 785, the court explained:

‘Tin contrast to the federal exclusionary rule,! the deterrent effect on future fpolice misconduct], though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.”

A defendant’s Article I, section 9, rights are violated by the admission of evidence that was seized in violation of that defendant’s Article I, section 9, rights. See State v. Tanner, 304 Or 312, 315-16, 745 P2d 757 (1987).

7 See People v. Schuford, 50 Ill App 3d 408, 410, 365 NE2d 731 (1977); State v. Gwinn, 390 A2d 479,482 (Me 1978); Shipley v. State, 243 Md 262, 269, 220 A2d 585 (1966); State v. Kincade, 61 Mich App 498, 502, 233 NW2d 54 (1975); State v. Patterson, 624 SW2d 11, 13 (Mo 1981); State v. Goodwin, 184 Neb 537, 541, 169 NW2d 270 (1969), cert den 397 US 1046 (1970).