Bell v. Hendricks ( 2019 )

216
Submitted November 19; reversed and remanded for reconsideration of
petitioner’s Church motion, otherwise affirmed December 11, 2019; petition for
review denied April 9, 2020 (366 Or 292)
LARRY LYDELL BELL, SR.,
Petitioner-Appellant,
v.
Kimberly HENDRICKS,
Superintendent,
Santiam Correctional Institution,
Defendant-Respondent.
Marion County Circuit Court
16CV20541; A167781
456 P3d 378
Petitioner appeals a judgment denying his petition for post-conviction relief.
He assigns error to the post-conviction court’s denial of relief on the single claim
that he asserted through counsel in his amended petition: Trial counsel was inef-
fective for failing to object on double-jeopardy grounds when the state introduced
additional enhancement factors on resentencing. Petitioner also assigns error
to the post-conviction court’s handling of his motion, filed pursuant to Church
v. Gladden, 244 Or 308, 417 P2d 993 (1966), in which he sought to raise addi-
tional claims that had been raised in his original pro se petition. According to
petitioner, the post-conviction court did not consider and rule on his motion in
the way required by the Supreme Court’s subsequent decision in Bogle v. State
of Oregon, 363 Or 455, 423 P3d 715 (2018). Held: Petitioner’s assignment of error
regarding the claim he asserted through counsel is foreclosed by the Supreme
Court’s holding in State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005). However,
the record does not reflect that the post-conviction court ruled in the manner
required by Bogle, so the Court of Appeals remanded for the court to reconsider
petitioner’s Church motion in light of that decision.
Reversed and remanded for reconsideration of petitioner’s Church motion;
otherwise affirmed.
Linda Louise Bergman, Senior Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
Cite as 301 Or App 216 (2019) 217
LAGESEN, P. J.
Reversed and remanded for reconsideration of petition-
er’s Church motion; otherwise affirmed.
218 Bell v. Hendricks
LAGESEN, P. J.
Petitioner appeals a judgment denying his peti-
tion for post-conviction relief, advancing two assignments
of error. In one of those assignments, he argues that the
post-conviction court erred in denying relief on the single
claim that he asserted through counsel in his amended
petition: trial counsel was ineffective for failing to object on
double-jeopardy grounds when the state introduced addi-
tional enhancement factors on resentencing. That argu-
ment is foreclosed by the Supreme Court’s holding in State
v. Sawatzky, 339 Or 689, 691, 125 P3d 722 (2005), and we
reject it for that reason. See id. (concluding that a criminal
defendant’s “rights against former and double jeopardy do
not prohibit the trial court from empaneling a jury to deter-
mine aggravating factors on which the trial court may rely
in imposing sentences that exceed the presumptive range for
the felony crimes to which [that defendant] pleaded guilty”).
Petitioner also assigns error to the post-conviction
court’s handling of his motion, filed pursuant to Church
v. Gladden, 244 Or 308, 417 P2d 993 (1966), in which he
sought to raise additional claims that had been raised
in his original pro se petition. At the time that petitioner
advanced that motion, controlling decisions of this court had
held that “[a] Church motion is simply the procedural mech-
anism 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),” and that “[n]othing
in that procedural mechanism necessitates a response by
the post-conviction court, or post-conviction counsel.” Lopez
v. Nooth, 287 Or App 731, 735, 403 P3d 484 (2017) (citing
Bogle v. State of Oregon, 284 Or App 882, 883-84, 395 P3d
643, aff’d on other grounds, 363 Or 455, 423 P3d 715 (2018)).
The Supreme Court had, by that time, allowed review of our
decision in Bogle. 362 Or 281 (2017).
Based on the controlling cases from this court, peti-
tioner’s post-conviction counsel informed the court that peti-
tioner’s Church motion was merely preserving his claims.
Counsel stated that petitioner
“did assert some Church claims. But of course the Court’s
not addressing this today. And I’ve explained to Petitioner
Cite as 301 Or App 216 (2019) 219
that those are as preserved as they’re going to get. But that
he—and he’s done his best to try to litigate them. And so
I wanted to point out on the record today that he’s not for-
feiting those claims. And he understands that he certainly
could under—.”
The court then interjected, “And I’ve read the Church claims.
Knowing what the status of the law was but I did want to
take a look at those because I saw that they’ve been tried.”1
The court did not thereafter refer to the Church motion or
mention the claims in the pro se petition, focusing instead on
the claim asserted through counsel in the amended petition.
After the post-conviction court entered its judg-
ment denying relief, the Supreme Court issued its deci-
sion in Bogle, clarifying a post-conviction court’s obligation
when confronted with a Church motion. The Supreme Court
rejected this court’s view that a Church motion was a pres-
ervation mechanism that required no response from the
court; rather, it held that “the steps that a post-conviction
court takes in response to a Church motion may vary,” but
“[t]he post-conviction court has an obligation to consider
and rule on the motion.” Bogle, 363 Or at 473. The court
explained:
“When determining what steps to take in response to a
Church motion and when ultimately ruling on the motion,
a post-conviction court should consider the importance of
post-conviction counsel, given the PCHA’s strict res judi-
cata provisions, and the fact that a petitioner cannot bring
a subsequent post-conviction case to challenge the ade-
quacy of post-conviction counsel. At the same time, the
court should consider the potential problems that could
arise if it intervenes too much in the attorney-client rela-
tionship. * * * Generally, a post-conviction court presented
with a proper Church motion should review the motion and
give the petitioner a reasonable opportunity to establish
the basis for replacement or instruction of the petitioner’s
current counsel. * * * In some cases, a court may be able
to make its ruling based solely on the petitioner’s written
motion; in other cases, a hearing may be required.
1
It is not entirely clear from the record what the court meant by “they’ve
been tried.” Petitioner had submitted a memorandum in support of his pro se
petition, but there is no indication that the claims were “tried” beyond that.
220 Bell v. Hendricks
“If a post-conviction court denies a petitioner’s Church
motion, but the petitioner still wants to raise the grounds
for relief that counsel has declined to raise, the petitioner
can move to dismiss counsel and proceed pro se and, if
that motion is granted, raise the grounds personally.
Alternatively, the petitioner can continue with current
counsel and, if need be, challenge the denial of the Church
motion on direct appeal, just as a defendant can challenge
the denial of a motion for substitution of counsel in a crim-
inal case.”
363 Or at 474.
On appeal, petitioner argues that the post-conviction
court did not consider and rule on his motion in the way that
the Supreme Court’s decision in Bogle requires. See State
v. Jury, 185 Or App 132, 136, 57 P3d 970 (2002), rev den,
335 Or 504 (2003) (explaining that the court determines
error based on the law as it exists at the time the appeal is
decided, and not as it existed at the time of the ruling being
reviewed).
The superintendent first responds that petitioner
did not preserve that claim of error. We disagree. In light
of then-controlling authority, which treated petitioner’s
Church motion as a mechanism to preserve his claims, he
did everything that could be reasonably expected to pres-
ent the motion and related claims to the court. See Peeples
v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008) (“What is
required of a party to adequately present a contention to
the trial court can vary depending on the nature of the
claim or argument; the touchstone in that regard, ulti-
mately, is procedural fairness to the parties and to the trial
court.”).
The superintendent next responds that the post-
conviction court did, in fact, consider and deny the Church
motion, as evidenced by the court’s statement, “And I’ve
read the Church claims. Knowing what the status of the law
was but I did want to take a look at those because I saw that
they’ve been tried.” According to the superintendent, that
is all that was necessary; Bogle does not require a court to
explain the bases on which it has considered and rejected a
Church motion.
Cite as 301 Or App 216 (2019) 221
Although the court’s comments that it “read” and
“did look at” the Church claims introduce some ambigu-
ity regarding how it understood its obligation, they do
not demonstrate the type of considered ruling that Bogle
requires, particularly when they were immediately pre-
ceded by petitioner’s counsel informing the court that the
Church claims were preserved for future litigation but were
not going to be addressed at that time. The post-conviction
court did not express disagreement with that understand-
ing but prefaced its comments by referring to the “status
of the law.” When viewed in that context, the court’s sub-
sequent comments do not reflect that it determined what
steps were necessary to respond to the motion, considered
whether petitioner had a reasonable opportunity to estab-
lish the basis for replacement or instruction of his current
counsel, or ultimately ruled on those questions as Bogle now
requires.
For that reason, we conclude that the appropriate
disposition in this case is to remand for the post-conviction
court to reconsider the Church motion in light of the
Supreme Court’s subsequent decision in Bogle, as we have
done in other cases in which the post-conviction court was
operating under contrary authority. See Vasilash v. Cain,
300 Or App 542, 559, 454 P3d 818 (2019) (remanding where
“the court was operating on an understandable, but ulti-
mately incorrect, perception of what it was required to do
in response to petitioner’s Church motion”); Field v. Myrick,
299 Or App 634, 639, 449 P3d 895 (2019) (remanding as to
Church claims where, in light of Bogle, it was “apparent that
the post-conviction court employed an incorrect analytical
framework in this case”).
Reversed and remanded for reconsideration of peti-
tioner’s Church motion; otherwise affirmed.