State v. Lloyd

PER CURIAM

Defendant appealed his conviction for first degree sodomy, ORS 163.405, and we affirmed. State v. Lloyd, 87 Or App 212, 741 P2d 936 (1987), rev den 305 Or 672 (1988). He then filed a petition for post-conviction relief, alleging that he had been denied effective assistance of trial and appellate counsel. He claimed that trial counsel failed to object properly to the testimony of a purported expert witness and that appellate counsel had failed to assign as error the trial court’s admitting that testimony. The post-conviction court found that the evidence was not admissible and was prejudicial and that defendant had been denied the effective assistance of trial and appellate counsel. As a remedy, it ordered that he be afforded a “delayed appeal on the evidentiary issues.”

Neither party appealed from that judgment. Instead, defendant filed this delayed direct appeal from his conviction. Because defendant had already had a direct appeal, the only appropriate remedy in the post-conviction proceeding, given the trial court’s findings and conclusions, was to grant him a new trial. If that had been done, the evidentiary questions on which the post-conviction court ruled could have been reviewed on the state’s appeal from that judgment. The only record on this direct appeal is the same as the record on defendant’s first appeal, and defendant may not raise new issues now that could have been raised then.

Affirmed.