Phillips v. Premo

DUNCAN, P. J. Petitioner appeals the judgment denying his petition for post-conviction relief (PCR), assigning error to the PCR court’s denial of his motion for a continuance. As explained below, we conclude that the PCR court abused its discretion by denying the motion without affording petitioner an opportunity to make a sufficient record regarding the basis for the motion. Accordingly, we reverse and remand. Petitioner filed a PCR petition, and an attorney, Cowan, was appointed to represent him in the PCR proceedings. On the day of the PCR trial, petitioner appeared by video from the correctional facility where he was housed, and his attorney appeared in person. When petitioner’s attorney called petitioner as a witness, petitioner moved for a continuance: “[PETITIONER]: Your Honor, before we begin I’d like to address the Court. I am moving at this time for a continuance of this proceeding. “THE COURT: That’s not allowed, Mr. Phillips. I’m denying your motion as not timely. Go ahead, Mr. Cowan. ‡ ‡ ‡ ⅜ “ [PETITIONER]: I can’t state something for the record? “THE COURT: *** Mr. Phillips you’re asking that this be continued, and the answer to that [is] it’s not going to be continued. So, go ahead please. “ [PETITIONER]: I mean— “THE COURT: Oh. “[PETITIONER]: Mr. — well, I’d like to put on the record that Mr. Cowan has been non-responsive to my request to assist me and has completely failed to provide suitable counsel as required for my post conviction proceedings. “THE COURT: All right. “[PETITIONER]: Mr. Cowan— “THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented — 636 — you. I am not going to delay these proceedings based on your belief about that. And if you have a basis for that contention that can be taken up some other time and place, but not now. “ [PETITIONER]: Well, I’d like to state these— “THE COURT: Mr. Cowan, would you please begin. “[PETITIONER]: I’d like to state these issues on the record, Your Honor. “THE COURT: I don’t want to— “[PETITIONER]: This is the only time in a post conviction proceedings. “THE COURT: Well, you have said that you feel he has been unresponsive and not represented you adequately. That’s about as broad as it possibly could be Mr. Phillips. [It] covers about everything— “[PETITIONER]: Well, there’s — there’s— “THE COURT: —that you might later claim. So— “[PETITIONER]: There’s witnesses— “THE COURT: —I’m going to ask you sir to not discuss this further. If my failure to listen to you further is some error on my part that can be taken up. Mr. Cowan please go ahead.” To recap, petitioner moved for a continuance, and the PCR court summarily denied the motion as untimely and directed petitioner’s attorney to proceed. Petitioner then asked if he could “state something for the record,” and the court responded that the case would not be continued and again directed petitioner’s attorney to proceed. Petitioner informed the court that his attorney had been nonrespon-sive and had failed to provide suitable counsel, and the court responded that it would not delay the proceedings and that if petitioner had a basis for his complaints about his attorney that could be “taken up some other time and place [.]” Petitioner said that he wanted to make a record, and the court responded by directing petitioner’s attorney to proceed for the third time. When petitioner repeated that he wanted to make a record, the court said that petitioner’s general complaints about his attorney would “cover about — 637 — everything” petitioner might later claim. When petitioner spoke again, the court asked him to “not discuss this further” and, for the fourth time, directed petitioner’s attorney to proceed. On appeal, petitioner asserts that the PCR court erred by denying his motion for a continuance. We review the denial of a motion for a continuance for abuse of discretion. State v. Ferraro, 264 Or App 271, 280, 331 P3d 1086 (2014). A court errs if it “fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.” State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987); State v. Romero, 236 Or App 640, 643-44, 237 P3d 894 (2010). We conclude that the PCR court abused its discretion by denying petitioner’s motion for a continuance without allowing petitioner to make a record regarding the basis for the motion. Whether denial of a motion for a continuance is error depends on the particular circumstances of the case. State v. Ringler, 264 Or App 551, 556, 333 P3d 1080, rev den, 356 Or 575 (2014); State v. Hickey, 79 Or App 200, 203, 717 P2d 1287 (1986). Here, the PCR court refused to afford petitioner an opportunity to identify the relevant circumstances. Consequently, the court was not in a position to make an informed ruling on the motion. The PCR court initially stated that it was denying petitioner’s motion as untimely, but the court did not provide petitioner an opportunity to explain why he was making the motion when he was. Unanticipated circumstances can arise, and a trial court cannot deny a motion for a continuance simply because the motion is made on the day of trial; whether a court may deny such a motion depends upon the particular circumstances of the case. See Hickey, 79 Or App at 204 (trial court abused its discretion by denying defendant’s day-of-trial motion for a continuance, which was based on the fact that defendant’s attorney’s briefcase had been stolen the day before). A court may deny a day-of-trial motion for a continuance, absent a specific showing of good cause regarding the timing of the motion, but here, because the PCR court refused to allow petitioner to make a record, it did not have the information necessary to determine — 638 — whether petitioner had good cause for making the motion when he did. Moreover, petitioner was able to alert the PCR court that his motion was related to his concerns about his court-appointed attorney. Depending on what they were, those concerns could have necessitated a continuance. For example, if petitioner’s concern was that his attorney had a conflict of interest, the court would have had to hold a hearing, and, if there was such a conflict, the court would have had to appoint substitute counsel. See Combs v. Baldwin, 161 Or App 270, 276-77, 984 P2d 366 (1999) (holding, in a habeas corpus proceeding, that “it is against reason for a party in a civil case to be required to be represented by appointed counsel against the party’s will and without a hearing on the merits of a claim of conflict of interest”); cf. Elkins v. Thompson, 174 Or App 307, 316, 25 P3d 376 (2001) (holding, in a PCR case, that the petitioner was not entitled to a hearing regarding his complaints about his appointed counsel where he had not alleged a conflict of interest). And, as another example, if petitioner’s concern was that his attorney had not raised certain claims, the court would have had to either instruct the attorney to raise the claims or appoint substitute counsel. See Church v. Gladden, 244 Or 308, 311-12, 417 P2d 993 (1966) (if a PCR petitioner’s attorney fails to raise a claim, the petitioner must inform the PCR court of the attorney’s failure so that, if warranted, the court can either instruct the attorney to raise the claim or appoint substitute counsel). But again, because the PCR court refused to allow petitioner to make a record, the court was not in a position to conclude that it could go forward with the trial. Consequently, the PCR court did not properly exercise its discretion when denying defendant’s motion for a continuance, and we are required to reverse and remand. See State v. Harper, 81 Or App 422, 424-25, 725 P2d 942 (1986) (reversing and remanding where the record did not indicate that the trial court considered whether the defendant’s request for a continuance was reasonable under the circumstances). The dissent contends that the PCR court did not err by denying defendant’s motion for a continuance. Specifically, — 639 — the dissent contends that the PCR court could properly deny defendant’s motion for three reasons: (1) petitioner made the motion himself, as opposed to having counsel make it; (2) the motion was untimely because it was not filed 28 days before trial as required by UTCR 6.030; and (3) the case had been pending for three years and the PCR court was prepared for trial. 280 Or App at 655-56 (DéVbre, J., dissenting). Each of those reasons is incorrect. First, petitioner was not required to have PCR counsel make the motion for him because the motion was based, at least in part, on petitioner’s complaints about PCR counsel himself. Petitioner informed the court that he believed that his PCR counsel had been “non-responsive” and had “completely failed to provide suitable counsel [.]” And, although petitioner did not believe that PCR counsel was prepared for trial, PCR counsel was proceeding to trial. Thus, petitioner and PCR counsel’s positions were at odds, and, consequently, petitioner was not required to sit silently when PCR counsel began to present petitioner’s case. Petitioner could personally raise the issues of whether his right to suitable counsel was being violated and whether his PCR counsel was failing to raise grounds for relief. Indeed, to the extent that petitioner’s complaints were that his PCR counsel was failing to raise grounds for relief, petitioner was required to speak up in order to protect his ability to raise those grounds. Under the PCR Act, “[a] 11 grounds for relief claimed by a petitioner in a [PCR] petition * * * must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief therein which could not reasonably have been raised in the original or amended petition.” ORS 138.550(3). In addition, although petitioners have a right to suitable counsel, ORS 138.590(1), if a petitioner’s PCR counsel fails to raise a ground for relief, the petitioner must personally inform the court of the failure. The Supreme Court made this requirement clear in Church, where it held that, if a petitioner’s PCR counsel fails to assert a ground for relief, the petitioner “could not sit idly by and later complain,” instead, the petitioner “must inform the court at first opportunity of — 640 — his attorney’s failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner’s request.” 244 Or at 311-12; Johnson v. Premo, 355 Or 866, 877, 333 P3d 288 (2014) (“If a post-conviction petitioner’s attorney fails to assert a ground for relief, the petitioner must bring that fact to the attention of the court to avoid the effect of ORS 138.550(3).”). Correspondingly, we have held that, if a petitioner’s PCR counsel fails to raise a ground for relief in the petitioner’s first PCR proceeding, the petitioner cannot raise that ground in a later PCR proceeding, even if the petitioner’s PCR counsel was inadequate in failing to raise it in the first proceeding. Page v. Cupp, 78 Or App 520, 525, 717 P2d 1183, rev den, 301 Or 338 (1986). Thus, a petitioner not only can, but must, inform the court when the petitioner’s PCR counsel is failing to raise grounds for relief. Accordingly, in this case, contrary to the dissent’s suggestion, the PCR court could not deny petitioner’s motion for a continuance, which was made in connection with what the PCR court itself recognized as a complaint that petitioner’s PCR counsel had been “unresponsive and not represented [petitioner] adequately,” on the ground that petitioner made the motion himself, rather than through his PCR counsel. The PCR court was required to afford petitioner the opportunity to fulfill the obligation that the law imposes on him to inform the PCR court about his counsel’s failures to raise grounds for relief. In support of the dissent’s claim that the PCR court could deny petitioner’s motion for a continuance on the ground that petitioner made the motion himself, the dissent relies on Johnson, in which the Supreme Court stated that “represented parties ordinarily must appear through counsel,” 355 Or at 877, and that a party may not “‘prosecute an action individually and through an attorney.’” 280 Or App at 654-55 (DeVore, J., dissenting) (quoting Johnson, 355 Or at 872) (emphasis in Johnson). But Johnson does not aid the dissent. Johnson stands for the proposition that a petitioner who has an attorney is not entitled to simultaneously act as his own attorney. 355 Or at 872. That is, a petitioner does not have a “right to engage in so-called ‘hybrid representation.’ ” Id. But that is not what petitioner was seeking to do in this case. As is apparent even from the limited statements — 641 — that petitioner was able to make regarding his motion for a continuance, petitioner was raising his concerns about PCR counsel’s representation. He was not seeking hybrid representation; he was seeking a continuance to ensure adequate representation. The dissent’s second reason for concluding that the PCR court did not err by denying petitioner’s motion for a continuance — viz., that the PCR court could deny the motion because it was not filed 28 days before trial — is also incorrect. The PCR court could not deny petitioner’s motion for a continuance on the ground that it was untimely without affording petitioner an opportunity to make a record regarding the timing of the motion. As discussed above, unanticipated circumstances necessitating a continuance can arise. A court can deny a motion for a continuance made on the day of trial as untimely, absent a showing of good cause for the timing of the motion, but a court cannot deny a party a reasonable opportunity to make such a showing. Finally, the dissent’s third reason for concluding that the PCR court did not err by denying petitioner’s motion for a continuance — viz., that the PCR court could deny the motion because the case had been pending for three years and the PCR court was prepared for trial — is also incorrect. The dissent asserts that “the denial of the motion was within the range of permissible discretionary rulings, given the circumstances of the case.” 280 Or App at 655 (DeVore, J., dissenting). The obvious difficulty with that assertion is that the PCR court denied petitioner the opportunity to inform it of the circumstances of the case. See Harper, 81 Or App at 425 (“As an essential predicate, the court should consider on the record whether the request for a postponement is reasonable in the circumstances.”) According to the dissent, the PCR court could deny the motion because the case had been pending for three years and the PCR court was ready for trial. Id. As a general matter, those may be strong reasons to deny a motion for a continuance, but whether they are valid reasons in a particular case depends on whether they outweigh the reasons for granting the motion. Here, by denying petitioner an opportunity to make a record regarding the reasons for granting the motion, the PCR — 642 — court denied itself the information necessary to conduct that balancing. Thus, we disagree with the dissent’s conclusion that the PCR court could deny petitioner’s motion as it did. We conclude that the PCR court could not summarily deny the motion without affording petitioner the opportunity to make a record. Consequently, we must reverse and remand. Harper, 81 Or App at 425 (reversing and remanding for a new trial where there record did not reflect that the trial court had considered whether the requested continuance was reasonable); see also Hickey, 79 Or App at 204 (reversing and remanding for a new trial when trial court erroneously denied requested continuance). Although we resolve this appeal based on our conclusion that the PCR court erred by denying petitioner’s motion for a continuance, which is the subject of petitioner’s first assignment of error, we write further to respond to the dissent’s analysis of petitioner’s second and third assignments of error, which concern the PCR court’s responses to petitioner’s complaints, made at and after trial, concerning his PCR counsel. Specifically, in his second assignment of error, petitioner asserts that the PCR court erred when “it denied petitioner’s verbal Church v. Gladden motion to instruct counsel to further investigate his claims, or, alternatively for substitution of counsel,” and, in his third assignment of error, petitioner asserts that the PCR court erred when it “failed to act on petitioner’s written motion pursuant to Church v. Gladden” The dissent rejects both of those assignments, concluding that the PCR court did not err because it could determine that petitioner’s complaints about his PCR counsel were only about “evidence” or “strategy” and, therefore, were not types of claims that, under Church, required either instructions to PCR counsel or substitution of counsel. 280 Or App at 660-63, 663-65 (DeVore, J., dissenting). For the reasons explained below, we disagree with the dissent’s reading of the record. In our view, it is apparent that petitioner was asserting that his PCR counsel had abandoned many of his claims, and it is also apparent that PCR counsel — 643 — had, in fact, failed to present the evidence necessary to proceed on many of petitioner’s claims. Therefore, contrary to the dissent’s conclusion, the PCR court could not dismiss petitioner’s claims without further inquiry to determine whether it was necessary either to instruct PCR counsel to raise certain claims or to substitute counsel. To explain our disagreement with the dissent, we must provide additional information about the nature of the proceedings. In the underlying criminal case, petitioner was charged with crimes for shooting another man, Seifried. The state’s theory was that petitioner shot Seifried because he was angry that Seifried would not help him commit a robbery. Petitioner’s theory was that it was Seifried who wanted to commit a robbery, and, when petitioner refused to help Seifried and took Seifried’s gun, Seifried attacked him, and, in the fight that followed, petitioner accidentally shot Seifried. Both sides presented evidence in support of their theories, and the jury convicted petitioner. Thereafter, petitioner filed the PCR petition in this case. In the petition, petitioner alleged, among other things, that his defense counsel had failed to adequately represent him at trial and sentencing. Petitioner’s specific allegations included that his defense counsel had failed to call certain witnesses to testify at his trial and sentencing.1 Among the witnesses that petitioner alleged should have been called were Christina Love, Melissa Henry, and John Davis.2 According to the petition, Love would have testified that Seifried told her that he intended to commit a robbery; Henry, who was Seifried’s girlfriend at the time of the shooting, would have testified that Seifried intended to commit a robbery and that he possessed guns; and Davis would have testified that he had seen Seifried in possession of a gun that matched the description of the gun used in the shooting. Other witnesses had testified to similar facts during — 644 — the criminal trial, but the state3 challenged the credibility of those witnesses, who had criminal histories.4 To obtain post-conviction relief on the ground that his defense counsel should have called certain witnesses at his criminal trial and sentencing, petitioner had to present evidence that the witnesses would have been available to testify at the trial and sentencing and that their testimony would have had a tendency to affect the results of those proceedings. See Carias v. State of Oregon, 148 Or App 540, 547, 941 P2d 571 (1997) (to establish that defense counsel’s failure to call a witness was prejudicial, a petitioner must present evidence of what the witness’s testimony would have been and that the witness would have been available to testify at trial); see generally Real v. Nooth, 268 Or App 747, 752, 344 P3d 33 (2015) (to prevail on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must prove, by a preponderance of the evidence, that defense counsel “failed to exercise reasonable professional skill and judgment based on the law at the time * * * counsel acted” and that that deficient performance “had a tendency to affect” the outcome of the prosecution); Strickland v. Washington, 466 US 668, 688, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (to prevail under the Sixth Amendment, petitioner must show that counsel’s performance “fell below an objective standard of reasonableness” and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). Before the PCR trial, petitioner’s PCR counsel filed a trial memorandum. In the memorandum, PCR counsel identified evidence that supported a few of petitioner’s claims, but he failed to do so for many of petitioner’s claims — 645 — regarding defense counsel’s failure to call witnesses.5 As the state pointed out in its trial memorandum, PCR counsel had not submitted affidavits or declarations from “the overwhelming majority” of the new witnesses that petitioner claimed should have been called at trial or sentencing.6 On the day of the PCR trial, it became apparent that petitioner’s PCR counsel had abandoned many of petitioner’s claims. As the state had pointed out, counsel had failed to present documentary evidence to support the majority of petitioner’s claims regarding new witnesses, and, at trial, he failed to present any testimonial evidence to support those claims. The only witness petitioner’s counsel called during the PCR trial was petitioner himself, and the evidentiary portion of the trial consisted only of PCR counsel identifying the claims as set out in the trial memorandum and asking petitioner if he had anything to add. At several points during the trial, petitioner answered that he had nothing to add because, although he had asked PCR counsel to gather evidence and call witnesses, PCR counsel had failed to do so. In response to almost all of those complaints, the state moved to strike petitioner’s answer on the ground that it was nonresponsive, and the PCR court granted the motion. For example, the following colloquy occurred when PCR counsel asked petitioner whether he had anything to add to the claims relating to Love and Harris: “[PCR COUNSEL:] [Claim] 7-Echo, Christina Love? Same question? “[PETITIONER:] Yes. I believe that she should have been called here today to testify in this matter. I did ask you to have her subpoenaed, because she was on my witness — 646 — list at trial, but never called. And she was in the courtroom the day of trial. “ [PCR COUNSEL:] Anything further? “[PETITIONER:] No. “[PCR COUNSEL:] 7-F, Melissa Henry? “[PETITIONER:] Once again, I have directed you to go get an affidavit and talk to her, and I’ve talked to Mr. Kraft, your investigator several times, I wrote him and talked to him, and he never did go get a statement from her. “ [STATE’S ATTORNEY]: Objection, Your Honor, move to strike. Not relevant and it’s not responsive to the question and issues before the Court. “THE COURT: That’s sustained.” At the conclusion of the trial, the PCR court denied relief. In its written judgment, the court concluded that petitioner had failed to support his claims against PCR counsel because he had failed to offer testimony about those claims during the PCR trial. The court explained: “At trial, [p]etitioner moved to postpone the hearing, claiming ineffective assistance of [PCR] counsel. He contended that Mr. Cowan had not been responsive to him. It is the [c]ourt’s opinion that the materials submitted by Mr. Cowan adequately portray [p] etitioner’s contentions, to which he agreed, in that he did not offer additional testimony at trial, except what was successfully objected to by the state.” After the trial, petitioner filed a written motion, asserting that he had asked PCR counsel to obtain testimony from witnesses who had not been called at the criminal trial and who would have supported petitioner’s account of what had occurred, including witnesses who would have testified that Seifried had spoken about his plans to commit robberies and that Seifried had been in possession of guns. Based on the record, we disagree with the dissent’s opinion that the PCR court could conclude that petitioner’s dispute with PCR counsel was merely a dispute about — 647 — evidence or strategy. It is clear from the record that petitioner was complaining about PCR counsel’s failure to present any evidence, physical or testimonial, in support of the majority of petitioner’s claims, a failure that the state itself had called to the attention of the PCR court and that the record bears out. Petitioner’s complaints about PCR counsel, together with PCR counsel’s own filings and trial presentation, were sufficient to put the PCR court on notice that petitioner was raising concerns about PCR counsel’s abandonment of claims. Consequently, petitioner’s dispute with PCR counsel could not be summarily dismissed as a dispute about how to raise claims; rather, it was a dispute about whether to raise claims at all.7 Therefore, the court had to make a further inquiry to determine whether to require PCR counsel to make the claims or to substitute counsel. In sum, we conclude that the PCR court erred by denying petitioner’s motion for a continuance without affording petitioner an opportunity to make a record regarding the basis for the continuance. And, in response to the dissent, we further conclude that the PCR could not reject, without further inquiry, petitioner’s complaints about PCR counsel’s abandonment of many of petitioner’s claims. We therefore reverse and remand for a new trial. Reversed and remanded. Footnotes [1] Petitioner also alleged that, after Seifried testified, defense counsel should have recalled certain witnesses to impeach Seifried’s testimony. [2] We mention Love, Henry, and Davis as representative uncalled witnesses. In his petition, petitioner identified several others who he alleged should have been called. He also alleged that other physical and scientific evidence should have been presented. [3] To avoid confusion, we refer to the defendant in this PCR case, who is the superintendent of the correctional facility where petitioner is incarcerated, as “the state.” [4] The dissent seems to suggest that the testimony of the witnesses who did not testify at trial would have been duplicative of the testimony of the witnesses who did testify, including Everson, Helzert, and Goldsberry. 280 Or App at 665 (DeVore, J., dissenting). That suggestion overlooks the value of corroboration, especially when, as in this case, the state, in its PCR trial memorandum, attacked the credibility of the witnesses on which the dissent focuses. [5] In the trial memorandum, for many of the claims, PCR counsel simply repeated the claim stated in the petition and then stated, “Petitioner may elect to testify about [the claim] at his post-conviction relief trial.” [6] The dissent notes that affidavits from two individuals, Collison and Harper, were introduced as evidence at the PCR trial. 280 Or App 665-66 (DeVore, J., dissenting). The record indicates that petitioner himself obtained those affidavits, and both affidavits are facially deficient because they do not include factual assertions to support a claim that Collison and Harper could have been located before the criminal trial. [7] The dissent repeatedly asserts that petitioner’s complaints regarding PCR counsel concerned only “the quantum” of evidence that PCR counsel presented. See, e.g., 280 Or App at 667-68, 670 (DeVore, J., dissenting). We disagree. To reiterate, petitioner’s PCR claims included claims that defense counsel had failed to call certain witnesses at trial and sentencing. As discussed, to pursue those claims, PCR counsel needed to present evidence that, if believed, would establish that the witnesses would have been discoverable and available at the time of petitioner’s criminal trial and would have testified in petitioner’s favor. But, as the state pointed out to the PCR court, PCR counsel failed to present any such evidence for the overwhelming majority of those witnesses. PCR counsel abandoned petitioner’s claims regarding those witnesses. The dissent appears to contend that, so long as PCR counsel presented evidence to support petitioner’s claim that Seifried was the aggressor, PCR counsel raised all of petitioner’s PCR claims. See 280 Or App at 666-67 (DeVore, J., dissenting). That is incorrect. A PCR trial is not a retrial of the underlying criminal case. Thus, the issue is not whether PCR counsel presented evidence to rebut the criminal charges, but rather whether PCR counsel pursued the specific claims of petitioner’s trial counsel’s deficient performance made in the PCR petition. As discussed, it is clear from the record in this case that petitioner was complaining that PCR counsel had abandoned some of his claims.