Goff v. Fhuere

No. 686 September 25, 2024 261

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

GREGORY GORMAN GOFF, Petitioner-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent. Marion County Circuit Court 21CV15039; A179830

Thomas M. Hart, Judge. Submitted August 14, 2024. Michael Curtis filed the brief for appellant. Gregory Gorman Goff filed the supplemental brief and reply brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Egan, Judge, and Kamins, Judge. KAMINS, J. Affirmed.

262 Goff v. Fhuere

KAMINS, J. Petitioner appeals a judgment denying post- conviction relief (PCR) from his 1990 aggravated murder conviction. In a counseled assignment of error, petitioner argues that the PCR court erred in granting the state’s motion for summary judgment, because ORS 138.510(3)— which sets a statute of limitations for PCR petitions—is unconstitutional. In a pro se supplemental brief, petitioner argues that the PCR court did not properly review his Church v. Gladden motion and that ORS 163.150—which allows a defendant to waive the right to a jury trial—is unconstitutional. We affirm. We review the PCR court’s denial of relief for legal error and accept the court’s implicit and explicit factual findings, provided there is evidence to support them. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). In his first assignment of error, petitioner does not dispute that his appeal was time-barred under ORS 138.510(3), but he argues that imposing a statute of limita- tions for a PCR petition amounts to an unconstitutional sus- pension of habeas corpus. That argument is foreclosed by the Supreme Court’s holding in Bartz v. State of Oregon, 314 Or 353, 365-66, 839 P2d 217 (1992) (explaining that the statu- tory period does not impermissibly suspend habeas corpus because it provides a “reasonable opportunity to seek post- conviction relief”). Petitioner asserts that Bartz was incor- rectly decided and requests that we overturn it; however, we are without the authority to do so. See State v. DeJong, 368 Or 640, 646 n 5, 497 P3d 710 (2021) (explaining that the Court of Appeals cannot overrule Supreme Court precedent). Petitioner advances three additional pro se assign- ments of error. First, he argues that the PCR court did not properly review his Church v. Gladden motion, in which he requested that the court instruct his counsel to raise six additional claims. Reviewing for an abuse of discretion, Bogle v. State of Oregon, 363 Or 455, 458, 423 P3d 715 (2018), we disagree. Petitioner’s Church v. Gladden claims were reviewed in accordance with the guidelines set out in Bogle, which

Nonprecedential Memo Op: 335 Or App 261 (2024) 263

explains that, when presented with a Church v. Gladden motion, a court should review the filings and provide the petitioner with a reasonable opportunity to establish their claim. Id. at 474. The PCR court did just that—it received filings outlining petitioner’s arguments and indicated that it reviewed the documents relating to petitioner’s Church v. Gladden motion. When given the opportunity to address the court, petitioner declined, and the court then briefly sum- marized the claims and issued its judgment. We discern no error in the PCR court’s ruling. Petitioner’s second and third pro se claims appear to argue that ORS 163.150(3)(c),1 which allows a defendant to waive trial by jury in favor of a plea, is unconstitutional under Article I, section 11, of the Oregon Constitution. See Or Const, Art I, § 11 (“[A]ny accused person, in other than capital cases, * * * may elect to waive trial by jury and con- sent to be tried by the judge of the court alone.”). According to petitioner, the limitation of the phrase “other than capital cases” on the ability to waive trial by jury means that defendants in capital cases may not plead guilty and stipulate to a sentence. However, the text of the quoted provision only addresses the inability to waive jury trial in favor of a bench trial. Petitioner cites no authority to support extending that limitation on a capital defendant’s ability to waive jury trial to the ability to plead guilty. Affirmed.

1 ORS 163.150(3)(c) states: “Nothing in this subsection shall preclude the court from sentencing the defendant to life imprisonment * * * or life imprisonment without the possibil- ity of release or parole * * * pursuant to a stipulation of sentence or stipulation of sentencing facts agreed to and offered by both parties if the defendant waives all rights to a jury sentencing proceeding.”