Patchell v. State of Oregon ( 2023 )

395
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 10, reversed and remanded April 19, 2023
LUCIAN MOON PATCHELL,
Petitioner-Appellant,
v.
STATE OF OREGON,
Defendant-Respondent.
Josephine County Circuit Court
20CV34301; A175815
Matthew G. Galli, Judge.
Jason Weber and O’Connor Weber LLC filed the briefs 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, and Kamins, Judge, and
Armstrong, Senior Judge.
LAGESEN, C. J.
Reversed and remanded.
396 Patchell v. State of Oregon
LAGESEN, C. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from his 2006 conviction for unau-
thorized use of a vehicle. As we elaborate below, he alleges
that Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206
L Ed 2d 583 (2020), renders his conviction unconstitutional in
two different ways. The state moved for summary judgment
solely on the basis that Ramos did not apply retroactively in
post-conviction proceedings, and the post-conviction court
granted the motion, adding that the court also concluded
that petitioner’s claims failed on the merits. Reviewing for
legal error, Yann v. Bowser, 301 Or App 720, 722, 459 P3d
272 (2020), we reverse and remand.
In 2006, petitioner was convicted, pursuant to a
plea, of one count of unauthorized use of a vehicle. After
the United States Supreme Court decided Ramos, petitioner
filed this petition for post-conviction relief. He alleged two
different grounds for relief: (1) that his trial counsel ren-
dered constitutionally inadequate and ineffective assistance
of counsel, in violation of Article I, section 11, of the Oregon
Constitution and the Sixth and Fourteenth Amendments
to the United States Constitution, in advising him “about a
plea based on the fear of a non-unanimous jury verdict”; and
(2) that his plea was not constitutionally valid, in violation
of the Sixth and Fourteenth Amendments, because it was
induced by fear of a conviction by a nonunanimous verdict.
The state moved for summary judgment on a sin-
gle, legal ground: that Ramos does not apply retroactively
in post-conviction proceedings. The post-conviction court
granted the motion, agreeing with the state that Ramos did
not apply retroactively in post-conviction proceedings. On
its own initiative, the court also concluded that the state
was entitled to summary judgment on the merits, ruling
that, because petitioner waived his right to a jury trial by
entering a plea, “petitioner may not obtain relief by alleging
his right to a unanimous verdict was violated.” Petitioner
appealed, assigning error to the post-conviction court’s
grant of summary judgment.
The Supreme Court’s decision in Watkins v. Ackley,
370 Or 604, 523 P3d 86 (2022), largely resolves this appeal.
Nonprecedential Memo Op: 325 Or App 395 (2023) 397
The parties agree—correctly—that Watkins means that
the post-conviction court erred when it granted the state’s
motion for summary judgment because, as is now clear,
Ramos does apply retroactively in post-conviction proceed-
ing under Oregon’s Post-Conviction Hearing Act, ORS
138.510 to 138.680. Watkins, 370 Or at 633.
This acknowledgment ordinarily would require
reversal. As petitioner points out, the post-conviction court’s
alternative basis for granting summary judgment does not
supply a basis for affirmance because the state did not seek
summary judgment on that basis. Eklof v. Steward, 360 Or
717, 736, 385 P3d 1074 (2016) (explaining that it would be
“improper” for a post-conviction court to grant summary
judgment on an issue not raised in the motion for summary
judgment). The post-conviction court therefore erred by
granting summary judgment on that basis. Further, under
Eklof, it generally is error for us to affirm a grant of summary
judgment on a basis not included in the motion for summary
judgment. Id. That is because, under such circumstances, a
party is deprived of the opportunity to put forth evidence in
support of their claim. Id. Here, because the only asserted
basis for summary judgment was the alleged nonretroactiv-
ity of Ramos, petitioner was never afforded an opportunity
to develop the evidence supporting his contentions that his
trial counsel performed inadequately, and that his plea was
induced by fear of a nonunanimous verdict. As a result, in
the present posture and through no fault of petitioner, this
case offers no concrete facts on which to evaluate the merits
of petitioner’s claims.
The state nonetheless urges us to affirm. With
respect to petitioner’s inadequate-assistance-of-counsel
claim, the state asserts that our decision in Smith v. Kelly,
318 Or App 567, 508 P3d 77 (2022), rev den, 370 Or 822(2023), precludes petitioner from prevailing. There, we held
that neither the state nor federal constitution was violated
by a lawyer’s failure to anticipate the decision in Ramos.
Id. at 569. With respect to petitioner’s challenge to the valid-
ity of the plea, the state urges us to affirm for a different rea-
son. Although it acknowledges Eklof’s general prohibition on
affirming a grant of summary judgment on a basis not raised
in the motion, the state contends that this case falls within
398 Patchell v. State of Oregon
an exception to the usual rules of procedure because, in the
state’s view, there is no set of facts on which petitioner would
be entitled to prevail. In support of that argument, the state
relies on Fenimore v. Blachly-Lane County C.E.A., 297 Or
App 47, 61-62, 441 P3d 699 (2019). In Fenimore, we affirmed
a grant of summary judgment on a basis not raised in the
motion where we concluded that, notwithstanding Eklof, we
were persuaded “that the record in this case would not have
developed differently had defendants raised the argument
below” on which we relied to affirm. Id.We are not persuaded by the state’s alternative
arguments for affirmance. Because the sole basis for sum-
mary judgment asserted in the state’s motion was that
Watkins is not retroactive, petitioner has not had the oppor-
tunity to present evidence on the merits of either one of his
asserted grounds for relief. Although petitioner ultimately
may not be able to present evidence of facts that will entitle
him to prevail on either, we are not prepared to say at this
point, as the state urges us to do, that there is no set of facts
that petitioner could prove that would entitle him to relief.
In that regard, we note that petitioner’s claim chal-
lenging counsel’s advice in the plea process differs from the
one we resolved in Smith, which involved counsel’s perfor-
mance at trial. Given that difference, we think the pru-
dent course is to allow petitioner the opportunity to develop
the factual basis for his claim before resolving its merits,
rather than resolving the merits based on our own (possibly
wrong) hypothesis about what the facts might be. The same
is true with respect to petitioner’s other asserted ground
for relief. Whether and to what extent Oregon’s unconsti-
tutional nonunanimous jury practice may have affected the
plea process in petitioner’s case, and, in particular, whether
it affected it to a degree that would render petitioner’s plea
invalid, is a question best resolved not on imagined facts
but on the concrete facts that led to petitioner’s plea. For
those reasons, we decline the state’s request to affirm on
grounds that were not raised in the state’s motion for sum-
mary judgment.
Reversed and remanded.