634
Submitted October 5, 2018; reversed and remanded as to the claims asserted in
the Church motion, otherwise affirmed October 2, 2019
FREDERICK GEORGE FIELD,
Petitioner-Appellant,
v.
John MYRICK,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
CV131579; A161168
449 P3d 895
Petitioner appeals a judgment denying his petition for post-conviction relief.
Petitioner filed, through the assistance of counsel, a petition for post-conviction
relief. Post-conviction relief was denied, and petitioner now appeals pro se.
Petitioner assigns error to the post-conviction court’s denial of his motion, pursuant to Church v. Gladden, 244 Or 308,
417 P2d 993 (1966), requesting that
the court either substitute counsel or compel counsel to raise additional claims
identified by petitioner. While this case was pending on appeal, in Bogle v. State
of Oregon,
363 Or 455,
423 P3d 715 (2018), the Oregon Supreme Court clarified
that, in response to a Church motion, a post-conviction court should determine
whether petitioner has established that, “in choosing which grounds for relief to
raise, counsel has failed to exercise reasonable professional skill and judgment.”
Held: In light of Bogle, the post-conviction court erred in its response to petitioner’s Church motion.
Reversed and remanded as to the claims asserted in the Church motion;
otherwise affirmed.
Rick J. McCormick, Senior Judge.
Frederick G. Field filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
JAMES, J.
Reversed and remanded as to the claims asserted in the
Church motion; otherwise affirmed.
Cite as 299 Or App 634 (2019) 635
JAMES, J.
Petitioner, an anesthesiologist, pleaded guilty to 11
counts of first-degree sexual abuse and one count of first-degree rape, resulting from his abuse of 12 of his sedated
female patients. He subsequently filed, through the assistance of counsel, a petition for post-conviction relief raising
numerous claims of ineffective assistance of trial counsel.
Post-conviction relief was denied, and he now appeals pro
se, raising six assignments of error. We reject without discussion five of those assignments, writing only to address
his second assignment of error in which he alleges that the
post-conviction court erred in handling his motion, filed
pursuant to Church v. Gladden, 244 Or 308,
417 P2d 993
(1966), requesting either substitution of counsel or for the
post-conviction court to compel post-conviction trial counsel to raise additional claims identified by petitioner. While
this case was pending on appeal, the Oregon Supreme Court
clarified how a post-conviction court should respond to a
Church motion in Bogle v. State of Oregon,
363 Or 455,
423
P3d 715 (2018). In light of Bogle, we conclude that the post-conviction court erred in its response to petitioner’s Church
motion and, accordingly, remand for further proceedings on
the four claims raised in the Church motion, but we otherwise affirm the judgment on the claims presented in the
fourth amended petition.
The factual basis underlying petitioner’s convictions
are not relevant to this appeal, and we do not discuss them.
The only pertinent facts for our purposes are procedural and
concern the court’s handling of petitioner’s Church motion.
Those facts are undisputed.
Post-conviction counsel filed four petitions, with
the fourth—the operative pleading for the post-conviction
trial—raising numerous claims of ineffective assistance
of trial counsel. Believing his post-conviction counsel had
not raised all the claims available to him, petitioner filed
a Church motion. In support of that motion, petitioner filed
an accompanying 20-page memorandum of law wherein he
argued why the four claims asserted in the Church motion
were legitimate.
636 Field v. Myrick
On November 24, 2015, approximately two weeks
before the scheduled trial, the court held a hearing on the
Church motion wherein petitioner presented a lengthy and
detailed oral argument, grounded in that memorandum of
law, asserting that his claims were legitimate and that reasonable counsel should raise them. Petitioner concluded that
presentation stating:
“[PETITIONER]: And the problem with these is these are
all meritorious claims, I believe. And I believe that strongly.
And [post-conviction counsel] did not put them in the petition. If I do not make the Court aware of these factors that
I wish to have added I am waiving my right to them.
“And, obviously, I mean, I don’t need to cite Church v.
Gladden to you, but I do not wish to waive my rights to
these and I would like the Court to request [post-conviction
counsel] to include these claims.”
Immediately following that presentation, the court
inquired of post-conviction counsel, who conceded that, in
light of the memorandum of law and oral argument, counsel
was persuaded that he reasonably should have included the
claims:
“THE COURT: And, [post-conviction counsel], any
response at this time?
“[POST-CONVICTION COUNSEL]: Well, Your Honor,
frankly, at this point I will acquiesce to my client’s desire
and I would ask at this point that the petition be amended
to include his claims.
“And that can save the Court from having to decide the
issue. The Court can permit amendment at any time. And,
of course, the State will—no opposition to giving them time
to respond. But I would ask the Court now to amend the
petition to include these claims.”
The superintendent objected to counsel’s concession,
arguing that the court should deny any additional claims,
deny any continuance, and the case should proceed to trial
as scheduled:
“[SUPERINTENDENT]: I certainly object. 70 or 80
claims are in a very lengthy fourth amended petition. It’s
far too late for amendment at this point. I’ve submitted
Cite as 299 Or App 634 (2019) 637
my trial memorandum. It’s 60 pages long. I’ve submitted
19 exhibits. This is ridiculous. Things aren’t done in this
manner.
“If [post-conviction counsel] wanted to include them he
should have done it long ago before we’d undertaken complete discovery, before we both submitted a very full record.
I object strenuously, Your Honor.”
Petitioner responded to these objections, arguing:
“[PETITIONER]: … [I]t’s not about a question of convenience for the State. I understand there is that issue, but
we are willing to give the State more time to prepare.
“The important question is what is it doing to my rights?
I’m the one who’s on trial here and I’m the one who wishes
these claims to be included because I feel that they are
valid claims of constitutional violations of my rights. And,
therefore, I’m requesting that the Court include these.
“It was an oversight that they were not included and
I had no control over that. As my memorandum points
out, I only recently learned that they were not going to be
included.”
The post-conviction court agreed with the superintendent, and it refused to accept petitioner’s counsel’s
concession that the claims in the Church motion should be
included in the petition:
“[THE COURT]: I’m not going to accept the acquiescence. It is too late to be really doing this without a substantive analysis of the Church claims as to why they
weren’t originally filed.
“So I’m going to look at them and I’ll get a decision out
here in the next couple days[.]”
Three days after the hearing, the post-conviction
trial court issued a written order on the Church motion, as
well as other pretrial matters:
“Petitioner asserts four primary issues for inclusion in the
petition under his Church notice. … At the conclusion
of the argument petitioner’s counsel stated that he would
include them in the petition, though trial is imminent in
the case, and the state objected to petitioner’s counsel’s new
position to include the claims that he earlier told petitioner
638 Field v. Myrick
he would not. The court advised counsel that the court was
not accepting the new position without analysis of the propriety of the claims. … For the reasons stated herein, the
court does not find the Church claims as presenting valid
claims under the facts and law.
“…
“The court looks to see if Petitioner provides legal sufficiency for additional asserted claims to be legally legitimate for inclusion, and in the alternative considers whether
counsel should be replaced.
“…
“Petitioner has not shown that the additional claims are
legally legitimate for inclusion, they are denied as legal
claims, and though not requested would decline to remove/
replace counsel, who is demonstrating the skills and experience commensurate with the nature of the case.”
(Internal quotation marks, footnote, and citation omitted.)
The post-conviction trial proceeded the next month
on the claims presented in the fourth amended petition.
Pursuant to the court’s ruling, post-conviction counsel
presented no evidence, nor made any argument, going to
the merits of any of the four claims in the Church motion.
Ultimately, the post-conviction court denied relief, and this
appeal followed.
We review for abuse of discretion court decisions on
motions to allow counsel to withdraw or to appoint substitute
counsel. See State v. Davis, 345 Or 551,
201 P3d 185 (2008)
(reviewing for abuse of discretion court’s denial of motions
to allow counsel to withdraw in criminal case); Temple v.
Zenon,
124 Or App 388,
862 P2d 585 (1993) (reviewing for
abuse of discretion court’s denial of request for substitute
counsel in post-conviction case). Discretion “refers to the
authority of a trial court to choose among several legally
correct outcomes.” State v. Rogers,
330 Or 282, 312,
4 P3d
1261 (2000). However, when a trial court’s exercise of discretion flows from a mistaken legal premise, its decision may
not fall within the range of legally correct choices and may
not always produce a permissible, legally correct outcome.
See, e.g., Espinoza v. Evergreen Helicopters, Inc.,
359 Or 63,
Cite as
299 Or App 634 (2019) 639
116-17,
376 P3d 960 (2016) (“[A] trial court’s decision may be
legally impermissible because it was guided by the wrong
substantive standard.”); State v. Mayfield,
302 Or 631, 645,
733 P2d 438 (1987) (explaining that, in some circumstances,
a trial court can err if it “fails to exercise discretion, refuses to
exercise discretion[,] or fails to make a record which reflects
an exercise of discretion”); State v. Pemberton,
226 Or App
285, 289,
203 P3d 326 (2009) (holding that, under Mayfield,
the exercise of discretion based on a mistaken premise of
law can be a failure to properly exercise discretion).
After the post-conviction trial court’s ruling in this
case, the Oregon Supreme Court decided Bogle, which clarified the scope of a post-conviction court’s inquiry when faced
with a Church motion. In Bogle, the court indicated that
when faced with a Church motion, a post-conviction court
is being asked for one of two possible remedies—“to either
replace counsel or instruct counsel to raise those grounds
for relief.” Bogle, 363 Or at 470-71. The court further noted
that post-conviction proceedings contain no “exception to the
general rule that a represented party must appear through
counsel.”
Id. It is only because these remedies each contemplate an intervention “in the attorney-client relationship in
a directive way,” and that intervention can only be permitted “when the petitioner has a legitimate complaint against
his attorney,” that any inquiry into the nature of the claims
becomes an issue.
Id. at 471. In that instance,
“[T]the inquiry that a post-conviction court must make in
response to a Church motion is whether the petitioner’s complaint about counsel is legitimate. Contrary to petitioner’s
argument in this case, it is not whether the grounds for
relief that the petitioner wants to raise are legitimate. …
Thus, the question before a court ruling on a Church motion
is whether the petitioner has established that, in choosing
which grounds for relief to raise, counsel has failed to exercise reasonable professional skill and judgment.”
Bogle,
363 Or at 473 (citation omitted).
From Bogle, it is apparent that the post-conviction
court employed an incorrect analytical framework in this
case. Once post-conviction counsel conceded that he should
have, and in fact now wanted to, include the Church claims
640 Field v. Myrick
in his petition, there was no Church remedy—instruction,
or removal—being sought by petitioner. At that point, the
issue before the court was not a request for a Church remedy, but a request under ORCP 23 for leave to amend the
petition, asserted by counsel. The post-conviction court’s
refusal to accept counsel’s “acquiescence” was an intervention into the attorney-client relationship in a manner not
permitted under Bogle—effectively telling counsel that he
was prohibited from raising certain claims on behalf of his
client, and prohibiting counsel from seeking to amend the
petition. Although the court examined the “propriety of the
claims” after the hearing, it did so in a manner of improper
hybrid representation. Petitioner was entitled to, yet denied,
the benefit of counsel—to have the court consider those
claims aided by counsel’s arguments on the merits, or after
counsel developed a record under the applicable standard of
ORCP 23.
We, therefore, reverse the post-conviction court’s
ruling as to the four claims asserted in the Church motion
and remand for consideration of counsel’s request to amend
the petition, pursuant to ORCP 23, to include those claims.
As we have stated:
“Leave to amend is to be ‘freely given when justice so
requires,’ and the trial court exercises ‘broad’ authority in
making that ‘discretionary determination.’ … Our cases
have, in fact, endorsed a ‘broad’ view of that authority.
Indeed, we are unaware of any appellate decision under
ORS 138.610 or ORCP 23 A reversing the allowance or
denial of leave to amend. Nevertheless, ‘discretion’ is not
absolute. There are limits.”
Ramsey v. Thompson, 162 Or App 139, 145,
986 P2d 54 (1999),
rev den,
329 Or 589 (2000) (emphases in original; citation
omitted).
We have suggested four, nonexclusive, factors for
consideration in an ORCP 23 motion for leave to amend:
“(1) the nature of the proposed amendments and their
relationship to the existing pleadings; (2) the prejudice, if
any, to the opposing party; (3) the timing of the proposed
amendments and related docketing concerns; and (4) the
colorable merit of the proposed amendments.”
Cite as 299 Or App 634 (2019) 641
(Internal quotation marks and citation omitted.) Caldeen
Construction v. Kemp,
248 Or App 82, 86-87,
273 P3d 174
(2012).
In the context of post-conviction proceedings,
another factor for consideration is the nature, and consequence, of the res judicata principles at play. As Bogle notes:
“A second reason for providing for the appointment of counsel was to ensure that petitioners did not inadvertently
waive any grounds for relief. According to Collins and Neil,
the appointment of counsel was ‘highly desirable in view of
the strict res judicata provisions’ of the PCHA.
“…
“… [A] post-conviction court should consider the
importance of post-conviction counsel, given the PCHA’s
strict res judicata provisions, and the fact that a petitioner
cannot bring a subsequent post-conviction case to challenge the adequacy of post-conviction counsel.”
Bogle, 363 Or at 466-67, 474.
Reversed and remanded as to the claims asserted
in the Church motion; otherwise affirmed.
