Karplyuk v. State of Oregon ( 2024 )

No. 598 August 28, 2024 601
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
IVAN KARPLYUK,
Petitioner-Appellant,
v.
STATE OF OREGON,
Defendant-Respondent.
Marion County Circuit Court
21CV47897; A180260
Patricia A. Sullivan, Senior Judge.
Submitted August 1, 2024.
Margaret Huntington and O’Connor Webber LLC filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
BALMER, S. J.
Affirmed.
602 Karplyuk v. State of Oregon
BALMER, S. J.
Petitioner appeals from a judgment denying him
post-conviction relief. Petitioner was charged with second-
degree robbery (a felony) and other crimes for demanding and
taking money from a hotel desk clerk while brandishing a
screwdriver. He pleaded guilty to second-degree robbery and,
pursuant to the parties’ stipulation, the trial court imposed
a downward departure sentence of probation. Petitioner,
however, failed to comply with the requirements of the men-
tal health court in which he participated, his probation was
revoked, and the trial court imposed the stipulated sentence
of 34 months in prison. After his release from prison, federal
immigration officials detained petitioner. At the time of his
petition for post-conviction relief, petitioner faced deportation
to Ukraine.
In denying relief, the post-conviction court found that
petitioner was not credible when he claimed that trial counsel
did not inform him of the immigration consequences of his
plea, that there was no evidence that the state would have
agreed to a misdemeanor conviction, and that, as a practi-
cal matter, petitioner “might have avoided ICE scrutiny if he
had complied with his probation.” The post-conviction court
also found that, although trial counsel did not pursue a “men-
tal defense”—that petitioner lacked the mens rea to commit
second-degree robbery because of his mental health issues—
“[t]he evidence against Petitioner was very strong.” Finally,
the trial court found that petitioner had “not shown that but
for Trial Counsel’s advice he would have gone to trial.”
On appeal from the post-conviction court’s denial of
relief, petitioner argues that the post-conviction court erred
when it denied his motion for leave to amend the petition.
Leave to amend a post-conviction petition is controlled by
ORS 138.610 and ORCP 23 A. ORS 138.610 provides, in
part, that the court “may make appropriate orders as to the
amendment of the petition or any other pleading.” ORCP 23 A
provides, in part, that leave to amend a pleading “shall be
freely given when justice so requires.” We review the denial
of a motion for leave to amend for abuse of discretion. Eklof
v. Persson, 369 Or 531, 537, 508 P3d 468 (2022). “Discretion”
refers to the authority of a trial court to choose among several
Cite as 334 Or App 601 (2024) 603
legally correct outcomes. State v. Rogers, 330 Or 282, 312,
4 P3d 1261 (2000). “If the trial court’s decision was within
the range of legally correct discretionary choices and pro-
duced a permissible, legally correct outcome, then the trial
court did not abuse its discretion.” Id. Although “amend-
ments are to be permitted ‘freely,’ which will ordinarily ben-
efit the party seeking amendment, the additional compo-
nent of the rule—‘when justice so requires’—means that the
court must consider the fairness to both parties of allowing
the amendment.” Eklof, 369 Or at 540.
Here, on December 15, 2021, petitioner filed a peti-
tion for post-conviction relief arguing that his trial counsel
was ineffective in failing to advise him that he was likely
to be deported if he pleaded guilty to second-degree rob-
bery. Trial was set for September 15, 2022. On September 2,
2022, petitioner moved for leave to file an amended petition
adding a claim that trial counsel was ineffective in failing to
investigate whether petitioner lacked the mens rea to com-
mit the offense of second-degree robbery. The state objected
to the motion, because the case was set for trial less than
two weeks later. In denying the motion, the post-conviction
court took note of the trial date and stated that “[p]etitioner
is a little late to amend without a continuance.”
Subsequently, the trial date was continued to
October 13, 2022, and petitioner sought reconsideration of
the denial of his motion for leave to amend. The state objected
to the motion for reconsideration, arguing that, even with
the rescheduled trial date, permitting the amended petition
would not comply with UTCR 24.100.1 The state also argued
that the parties already had filed their trial memoranda and
exhibits, and that petitioner’s proposed amended petition
contained new substantive claims that the state was unable
to respond to and to prepare for before trial. Finally, the state
noted that petitioner’s counsel had expressly agreed to the
October 13, 2022, trial date—presumably because both par-
ties and the judge all wanted the case to be resolved quickly,
1
UTCR 24.100(1) provides that trials in post-conviction relief cases “will be
scheduled as soon as possible after defendant’s answer is filed or after the date
for filing an answer has passed but, unless the parties consent, trial shall not be
scheduled sooner than 90 days after the date the answer is filed or the date for
filing an answer has passed.”
604 Karplyuk v. State of Oregon
given petitioner’s ICE detention. The post-conviction court
denied the motion for reconsideration.
We conclude that the post-conviction court did not
abuse its discretion when it denied leave to amend the petition.
The record indicates that the post-conviction court wanted to
resolve the case “as promptly as possible” precisely because
petitioner was in ICE custody and faced deportation. Notably,
in seeking leave to amend, petitioner did not request a contin-
uance. The timing of the motion for leave to amend and the
concern to resolve the case promptly weighed against grant-
ing it. See C.O. Homes, LLC v. Cleveland, 366 Or 207, 216,
460 P3d 494 (2020) (“Generally, the further a case proceeds,
the more reluctant the courts are to permit amendments.”
(Internal quotation marks omitted.)).
As noted, petitioner’s proposed amendment would
have added a new claim arguing that trial counsel was inef-
fective in failing to investigate and inform petitioner of a “lack
of mens rea defense” to the charge of second-degree robbery.
Up to that point, the focus of the case had been on whether
trial counsel properly advised petitioner about the immigra-
tion consequences of his plea, and whether his guilty plea was
knowing and voluntary. At trial, in its cross-examination of
petitioner’s trial counsel, the state focused on establishing that
trial counsel reviewed the plea petition with petitioner, which
stated that conviction of a crime will result in deportation.
If the post-conviction court had permitted the amendment, it
would have prejudiced the state, because it would have signifi-
cantly altered the nature of the case and the work necessary
to defend against petitioner’s new claim at a time when the
trial memoranda and exhibits had already been filed and trial
was less than two weeks away. Cf. RLF Liquidating, LLC v.
McDonald Brothers, Inc., 318 Or App 321, 327, 507 P3d 758,
rev den, 369 Or 733 (2022) (determining in part that the trial
court abused its discretion in denying leave to amend because
the amendment did not purport to add a new claim or defense).
Based on the timing of the proposed amendments, petitioner’s
failure to request a continuance, and the prejudice to the state
that would have been caused by the proposed amendments,
we conclude that it was within the post-conviction court’s dis-
cretion to deny the motion for leave to amend.
Cite as 334 Or App 601 (2024) 605
We also observe that several other findings and
conclusions by the post-conviction court, supported by the
record, bolster our conclusion that the post-conviction court
did not abuse its discretion in denying petitioner’s motion
to amend. Although the court had not allowed evidence of
petitioner’s mental health issues to show that trial coun-
sel should have pursued a mens rea defense, the court did
allow such evidence on the issue of whether petitioner could
establish prejudice to him from trial counsel’s alleged inade-
quacy. And based on that evidence, as noted above, the post-
conviction court observed that such a defense was unlikely
to prevail given the “strong evidence” against defendant.
Additionally, the court concluded that the prosecution would
not have agreed to a misdemeanor plea; that the plea agree-
ment trial counsel had negotiated—a downward departure
from a Measure 11 sentence to probation and a stipulated
34-month sentence if probation was not successful—was a
reasonable one; and that petitioner had failed to show that,
but for trial counsel’s advice, he would have gone to trial. See
Eklof, 369 Or at 542 (“even absent a showing of prejudice,
justice does not require futile amendments to be allowed”).
Petitioner also assigns error to the denial of his
motion for reconsideration. The state did not challenge our
ability to review the denial of a motion for reconsideration,
but we note that such motions can create procedural problems
on appeal. See Carter v. U.S. National Bank, 304 Or 538, 546,
747 P2d 980 (1987) (Peterson, C. J., concurring), overruled on
other grounds by Assoc. Unit Owners of Timbercrest Condo.
v. Warren, 352 Or 583, 288 P3d 958 (2012) (characterizing
motions for reconsideration as a “motion asking for trouble”
and discouraging their use). To the extent the denial of the
motion is appealable or reviewable on appeal from an appeal-
able order or judgment, we conclude that the court did not
abuse its discretion in denying it. See Lang v. Rogue Valley
Medical Center, 361 Or 487, 497 n 8, 501, 395 P3d 563 (2017)
(reviewing order dismissing action for abuse of discretion
and considering whether “the trial court abused its discre-
tion in adhering on reconsideration” to that order).
Affirmed.