Allen v. Palmateer

182 P.3d 255 (2008) 219 Or. App. 221

Earl ALLEN III, Petitioner-Appellant,
v.
Joan PALMATEER, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

00C14551, A125096.

Court of Appeals of Oregon.

Argued and Submitted February 28, 2008. Decided April 9, 2008.

Erin K. Galli argued the cause for appellant. With her on the brief was Chilton, Ebbett & Rohr, LLC.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

PER CURIAM.

Petitioner appeals a judgment denying his petition for post-conviction relief, arguing, among other things, that the court erred in denying him an opportunity to testify in support of his claims for relief. We agree with petitioner that the court erred in refusing to allow petitioner to testify and, hence, do not reach petitioner's other claims of error. We therefore reverse and remand the judgment that dismissed petitioner's post-conviction claims.

Based on our review of the transcript, we conclude that the post-conviction court denied petitioner an opportunity to testify at the post-conviction trial. We further conclude that the court denied petitioner the opportunity to make an offer of proof about his proposed testimony. We therefore conclude that, notwithstanding the absence of an offer of proof that would permit us to determine whether the court's decision to exclude evidence prejudiced petitioner, see OEC 103, we must reverse the judgment and remand the case for a new post-conviction trial. See, e.g., State v. Rodriguez, 115 Or.App. 281, 287, 840 P.2d 711 (1992) (court commits reversible error by refusing to permit a party to make an offer of proof regarding excluded evidence).

Reversed and remanded.