473
Submitted May 6, 2019, affirmed September 16, 2020, petition for review denied
February 4, 2021 (367 Or 535)
EDWARD HARVEY STOKES,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
12109681P; A164125
475 P3d 110
One week before petitioner’s post-conviction trial, petitioner’s counsel filed a
motion to withdraw, representing that he had a mandatory duty to do so under
the Oregon Rules of Professional Conduct. Then, the morning of the hearing,
petitioner filed a motion to continue the trial so as to permit consideration of petitioner’s motion under Church v. Gladden, 244 Or 308,
417 P2d 993 (1966), which
had yet to be received by the court. Given extensive delays in the case and the
untimeliness of the Church motion, the court denied both motions but indicated
that counsel would have wide latitude during trial to avoid ethical conflicts. The
court later denied petitioner’s petition on the merits. Petitioner appeals, assigning error to the denial of counsel’s request to withdraw and to the denial of the
motion for continuance. Held: The post-conviction court did not abuse its discretion in denying petitioner’s motion for a continuance, because petitioner’s Church
motion was untimely. Further, under State v. Davis,
345 Or 551, 581-82,
201 P3d
185 (2008), cert den,
558 US 873 (2009), the court’s decision to deny counsel’s
pretrial motion to withdraw to see how the trial would unfold was a permissible
exercise of discretion.
Affirmed.
J. Burdette Pratt, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
opening brief for appellant. Edward Harvey Stokes filed the
supplemental brief pro se.
Frederick M. Boss, Deputy Attorney General, Benjamin
Gutman, Solicitor General, and Ryan Kahn, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
474 Stokes v. Cain
LAGESEN, P. J.
Affirmed.
Cite as 306 Or App 473 (2020) 475
LAGESEN, P. J.
Petitioner appeals a judgment denying his petition
for post-conviction relief. On appeal, in the brief submitted
through counsel, he assigns error to (1) the post-conviction
court’s denial of his lawyer’s motion to withdraw, filed one
week before the scheduled hearing date; and (2) the post-conviction court’s denial of his motion to continue the hearing date to allow for consideration of petitioner’s motion filed
under Church v. Gladden, 244 Or 308,
417 P2d 993 (1966).
In the pro se supplemental brief, petitioner argues that his
post-conviction lawyer did not perform effectively, and he
also contends that the post-conviction court relied on “an
improperly reported prejudicial record” in rendering its
decision and improperly relied on an “unsworn declaration.”
We affirm.
As recounted by the Supreme Court on petitioner’s
direct appeal, petitioner was convicted of four sex offenses
and those convictions were affirmed on appeal. See State v.
Stokes, 350 Or 44,
248 P3d 953, cert den,
565 US 920 (2011).
After the completion of his direct appeal, petitioner filed
this post-conviction proceeding at the beginning of October
2012. The post-conviction court appointed counsel to represent him. At the same time, the court issued an “Order
Regarding Post-Conviction Relief Proceedings and Limited
Judgment.” Pertinent to this appeal, that order specified that
any motions under Church were to be filed “[n]o later than
forty-five (45) days after receipt of the amended petition.”
A little more than three years later, after receiving
numerous extensions of time, counsel filed an amended petition supported by 28 exhibits. The amended petition alleged
two claims of ineffective assistance of counsel—challenging
the performance of both trial counsel and appellate counsel—
and one claim of prosecutorial misconduct. Petitioner did
not file a Church motion within 45 days of the filing of the
amended petition.
The superintendent responded to the amended petition by moving for summary judgment on some, but not all, of
the specifications of ineffective assistance of counsel and on
the claim of prosecutorial misconduct. The post-conviction
court granted the motion.
476 Stokes v. Cain
Two days after entering the order on the motion for
partial summary judgment, the post-conviction court held
a status conference at which the parties reported ready
for trial, which the court scheduled for December 6, 2016.
Shortly thereafter, petitioner, through counsel, filed a trial
memorandum detailing his theories of relief and supporting
evidentiary exhibits.
Two weeks later, and one week before the scheduled hearing date, petitioner’s appointed lawyer filed a
motion to withdraw as counsel. Counsel represented that
he had a mandatory duty to withdraw under Oregon Rule of
Professional Conduct (RPC) 1.16(a)(1), but that he was precluded from disclosing the reason under RPC 1.6(a). Then,
the morning of the hearing, petitioner filed a motion to continue the trial so as to permit consideration of petitioner’s
motion under Church. Counsel explained that petitioner had
mailed the motion but that the court apparently had yet to
receive it.
The post-conviction court addressed both motions
on the hearing date, denying them both. On the motion for
the continuance, and consistent with its initial scheduling
order requiring any Church motion to be filed within 45 days
of the filing of the amended petition, the court noted that the
case had been pending for more than four years, that the
amended petition had been filed in February of that year,
and that petitioner had “had an opportunity since February
to notify the court of any additional claims he wished to file”
beyond those contained in the petition. For those reasons,
the court viewed any Church motion as “untimely,” such that
it did not provide a basis for a continuance. As for counsel’s
motion to withdraw, the court explained that it understood
that counsel might be put “in a difficult situation, but given
the long delays, the history in this case, we’re going to go
forward with trial.” The court stated that “[w]hatever the
case may be,” it would allow counsel “a lot of latitude to help
[him] avoid any ethical issues.”
Following the court’s ruling, counsel requested permission to confer with petitioner regarding how petitioner
wished to proceed. Following their conferral, counsel reiterated that the presiding judge had directed petitioner to raise
Cite as 306 Or App 473 (2020) 477
his issues through a Church motion. Counsel also put on the
record that he and petitioner had not had any substantive
communications about the case since October 25, because
they had been attempting to work through ethical issues.
Counsel stated further that “we’re going to pass on that simply he’s not prepared and could not be so,” and “[p]etitioner
will rely on the materials previously filed with this court
for purposes of going forward.” Counsel did not, however,
request the post-conviction court to reconsider its earlier
rulings in view of that additional information. Counsel also
did not make any new motions based on that information. In
particular, counsel did not request a continuance based on
his representation that petitioner was not prepared for trial.
Instead, as noted, counsel represented that petitioner would
rely on the previously filed briefing and evidence. The post-conviction court took the matter under advisement.
Nine days after trial, petitioner’s Church motion was
received and filed with the court. The post-conviction court
entered an order denying it as untimely, based on its earlier
ruling at trial that any such motion would be untimely. The
post-conviction court later denied the petition on the merits.
Petitioner appealed. On appeal, he assigns error to
the denial of counsel’s request to withdraw and to the denial
of the continuance.
We review a trial court’s ruling on a lawyer’s motion
to withdraw for abuse of discretion. State v. Davis, 345 Or
551, 579,
201 P3d 185 (2008), cert den,
558 US 873 (2009).
Here, petitioner argues that, in view of counsel’s representation to the court that he had a mandatory duty to withdraw
under the Oregon Rules of Professional Conduct, the post-conviction court had no choice but to grant counsel’s motion.
The superintendent responds that, under the Supreme
Court’s decision in Davis, the post-conviction court both had
the discretion to deny the request to withdraw and acted
within its discretion by denying it.
We agree with the superintendent. In Davis, counsel for the defendant moved to withdraw right after trial had
started on the ground counsel was “ ‘completely and totally
professionally compromised.’ ” Davis, 345 Or at 581. The trial
478 Stokes v. Cain
court denied the motion, explaining that counsel could raise
the motion again during trial if need be, but that the court
was not persuaded by what it had seen that counsel could
not discharge his professional obligations, even with the
strain on the relationship.
Id. at 581-82. On appeal to the
Supreme Court, the defendant contended that the attorney’s
representation that he was “professionally compromised”
required the trial court to grant the motion to withdraw.
Id.
The Supreme Court “decline[d] to adopt such a per se rule,”
and concluded that the trial court’s handling of the motion
did not represent an abuse of discretion, particularly given
that the court’s ruling did not foreclose counsel from raising
the issue again.
Id.
Here, petitioner appears to be arguing in favor of the
sort of per se rule that the Supreme Court rejected in Davis.
He contends that, based on counsel’s representation about
his professional conflict, “the court had one legally correct
option: allow trial counsel to withdraw.” But Davis refused
to adopt an analogous proposition. Beyond that, similar to
Davis, the court told counsel it would give counsel “a lot of
latitude” to “avoid ethical issues.” Although that is not the
same as telling counsel that counsel could reraise his motion
to withdraw at trial if his ethical concerns came to fruition, it reflects that the post-conviction court accounted for
counsel’s ethical concerns and remained open to addressing
them should they manifest as the hearing unfolded. In view
of Davis’s rejection of the per se rule that petitioner advocates, as well as its apparent acceptance of the wait-and-see
approach adopted by the trial court there, we are unable to
conclude that the post-conviction court’s denial of counsel’s
request to withdraw under similar circumstances was an
abuse of discretion. That is, the court was not required to
grant counsel’s request, and the decision to wait to see what
happened at trial was a permissible one.
We reach the same conclusion with respect to the
post-conviction court’s denial of petitioner’s motion for a continuance. As with a ruling on a request to withdraw as counsel, we review for abuse of discretion. State v. Parker, 317 Or
225, 231,
855 P2d 636 (1993). Here, the only stated basis for
the continuance was to permit consideration of petitioner’s
Cite as
306 Or App 473 (2020) 479
Church motion, which had not yet arrived in the mail. But
that motion was untimely, filed long past the 45-day deadline imposed by the court’s order, as the post-conviction
court correctly recognized. Cf. Bogle v. State of Oregon,
363
Or 455, 475,
423 P3d 715 (2018) (noting that courts may
impose deadlines on Church motions). Moreover, petitioner
supplied the court with no reasons as to why, notwithstanding its untimeliness, petitioner’s situation was such that
his Church motion warranted consideration on the merits
nonetheless. Although we do not hold categorically that a
continuance is never warranted for the purposes of consideration of an untimely Church motion, even in the presence
of a scheduling order like the one issued here, on this record
we cannot conclude that the post-conviction court abused its
discretion in denying petitioner’s request.
That leaves petitioner’s pro se supplemental assignments of error. His two record-based challenges are unpreserved and we reject them for that reason. His remaining
assignments of error assert that his post-conviction trial
lawyer performed ineffectively. That is not a cognizable basis
for reversing or setting aside the post-conviction court’s
decision. See Miller v. Baldwin, 176 Or App 500, 506-08,
32
P3d 234 (2001) (claim of inadequate post-conviction counsel
is not a basis for post-conviction relief); see also Hayward
v. Premo,
281 Or App 113, 119,
383 P3d 437, rev den,
360
Or 751 (2016), cert den, ___ US ___,
137 S Ct 2242 (2017)
(alleged inadequacy of post-conviction counsel is not a basis
to excuse a post-conviction petitioner’s failure to raise a particular collateral challenge to a conviction or sentence).
Affirmed.
