676
Argued and submitted November 12, 2019, affirmed June 30, 2021
MARLIN B. POHLMAN,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
16CV0005; A167292
493 P3d 1095
Petitioner appeals a judgment denying his request for post-conviction relief.
He contends that the post-conviction court erred in denying his motion, filed pursuant to Church v. Gladden, 244 Or 308,
417 P2d 993 (1996), in which he sought
to raise additional claims initially alleged in his pro se petition for post-conviction
relief. Specifically, petitioner asserts that the court erred by applying the incorrect legal standard in reviewing his motion. The superintendent responds that
those arguments were not preserved in petitioner’s post-conviction proceedings.
Held: Petitioner’s arguments were not preserved.
Affirmed.
J. Burdette Pratt, Senior Judge.
Lindsey Burrows argued the cause for appellant. Also on
the brief was O’Connor Weber LLC.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeHOOG, J.
Affirmed.
Cite as 312 Or App 676 (2021) 677
DeHOOG, J.
Petitioner appeals a judgment denying his request
for post-conviction relief. He raises five assignments of
error through counsel, together with 50 assignments that
he raises pro se. We write to address his second, third, and
fourth assignments of error, and we reject the remainder
without discussion. In his second through fourth assignments of error, petitioner contends that the post-conviction
court erred in denying his motion, filed pursuant to Church v.
Gladden, 244 Or 308,
417 P2d 993 (1996), in which he sought
to raise additional claims initially alleged in his pro se petition for post-conviction relief.1 Specifically, petitioner asserts
that the court erred by applying the incorrect legal standard
in reviewing his motion. The superintendent responds that
those arguments were not preserved in petitioner’s post-conviction proceedings. We agree that petitioner’s arguments are not preserved and, accordingly, affirm.
The relevant facts are undisputed. In the underlying criminal proceeding, petitioner was convicted following
a plea of guilty to attempted second-degree assault, ORS
163.175 (Count 2); unlawful possession of 3, 4-methylendioxymethamphetamine, ORS 475.874 (Count 7); and unlawful possession of a Schedule III controlled substance, ORS
475.752(3)(c) (Count 8), and a plea of no contest to second-degree sexual abuse, ORS 163.425 (Count 3). In accordance
with plea negotiations, the remaining counts were dismissed, and the court sentenced petitioner to a total of 75
months in prison.2
With the assistance of counsel, petitioner pursued
post-conviction relief, challenging both his convictions and
his sentence. In the course of the ensuing proceedings,
1
Petitioner initiated post-conviction proceedings by filing a petition on his
own behalf. The trial court subsequently appointed post-conviction counsel, who
then filed an amended petition with the post-conviction court that included some,
but not all, of the claims petitioner had initially asserted.
2
Pursuant to the plea agreement, the state dismissed petitioner’s charges
of first-degree unlawful sexual penetration, ORS 163.411 (Count 1); two counts
of unlawful possession of a controlled substance, ORS 475.752 (Counts 4 and 9);
attempted first-degree rape, ORS 163.375 (Count 5); and third-degree sexual
abuse, ORS 163.415 (Count 6).
678 Pohlman v. Cain
petitioner also filed a Church motion and alleged several
pro se claims.
Following that filing, petitioner engaged the court
in a colloquy concerning the burden of proof that he had to
satisfy as to each claim in his Church motion. Specifically,
petitioner stated that
“I don’t know … the quantum of proof that I need to
provide.
“…
“… It just says … that there is a burden of proof or
a factual basis for each claim and that’s as far as the …
ruling itself goes. So I’m curious as to your interpretation
of Church v. Gladden.”
The court responded:
“My interpretation of Church v. Gladden is that you need
to establish to this Court, by a preponderance that—that
these claims should be filed and included in your petition.
“If you satisfy that burden, what I do is I essentially
direct [post-conviction counsel] to incorporate these claims
into your petition. If I’m not satisfied, I essentially dismiss
the claims.”3
Following that colloquy, petitioner said “[f]air enough” and
then requested a continuance because he needed more time
“to establish the merits” of the claims. The court granted
that continuance.
The post-conviction court held a hearing on petitioner’s Church motion approximately two months later.
Although petitioner sought to assert a large number of additional claims for relief, we discuss only Claims III, XIV, and
L because those are the claims relevant to the assignments
3
As the Supreme Court explained in Bogle v. State, 363 Or 455, 472,
423 P3d
715 (2018), a “Church motion” is a means for a petitioner with a “legitimate complaint” about counsel to “inform the post-conviction court that petitioner’s counsel has failed to assert a ground for relief and to ask the court either to replace
counsel or to instruct counsel to assert the ground for relief.” A “legitimate complaint includes a complaint that counsel is not exercising reasonable professional
skill and judgment.”
Id. at 472-73. The post-conviction court must consider a
Church motion and, if the petitioner establishes a legitimate complaint, exercise
its discretion as to what relief to provide.
Id. at 473-74. The post-conviction proceedings in this case took place before the issuance of Bogle.
Cite as
312 Or App 676 (2021) 679
of error that we address here. In Claim III, petitioner
asserted that his state and federal constitutional rights
had been violated when the trial court accepted his pleas,
because they were not knowing, intelligent, and voluntary.
In Claim XIV, petitioner asserted that his rights had been
violated when the trial court failed to inquire into the reasons for petitioner’s request for substitute counsel at trial.
Upon considering petitioner’s motion, the post-conviction
court concluded that it would not require counsel to pursue
either of those two claims, reasoning that an alleged error by
the trial court is not a “cognizable claim for post-conviction
relief.” Lastly, in Claim L, petitioner asserted that he was
entitled to relief due to his “actual innocence” of the charges
on which he had been found guilty. As to that allegation, the
court agreed with petitioner’s counsel that claims of actual
innocence are not “typically entertained by Oregon courts
in the post-conviction relief process.” Accordingly, the court
denied petitioner’s Church motion.
Petitioner’s post-conviction trial took place several
months after that hearing. At trial, the court granted
relief on petitioner’s claim that his trial counsel had been
ineffective in failing to object to the length of post-prison
supervision. The court otherwise denied petitioner’s claims.
Petitioner then initiated this appeal.
On appeal, petitioner argues that, during the pretrial hearing on his Church motion, the post-conviction court
erred by focusing on “the merits” of the claims he sought to
have added to his petition, rather than “on whether post-conviction counsel exercised reasonable professional skill
and judgment,” as required by Bogle v. State of Oregon, 363
Or 455,
423 P3d 715 (2018). Specifically, petitioner argues
that the above colloquy regarding the burden of proof and
the court’s spoken rulings demonstrate that the court
incorrectly considered the potential merits of his claims
in denying his Church motion. In petitioner’s view, Bogle
prohibits a post-conviction court from relying on its own
assessment of the merits of the claims a petitioner seeks to
add when deciding whether to grant a Church motion.4 The
4
Although it is true, as petitioner asserts, that the Supreme Court has
explained that the issue for a court to decide in a Church motion is “whether the
680 Pohlman v. Cain
superintendent responds that petitioner “never objected to
the post-conviction court’s handling of his Church motion;
nor did he request findings about post-conviction counsel’s
exercise of reasonable professional skill and judgment.”
Thus, in the superintendent’s view, petitioner’s arguments
are not preserved. For the reasons provided below, we agree.
“Preservation principles apply in the context of
post-conviction relief and, as a general rule, arguments not
made to the post-conviction court in support of a claim will
not be considered on appeal.” Hale v. Belleque, 255 Or App
653, 660,
298 P3d 596, adh’d to on recons,
258 Or App 587,
312 P3d 533, rev den,
354 Or 597 (2013). The purpose of
preservation is “to advance goals such as ensuring that the
positions of the parties are presented clearly to the initial
tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.” State v.
Whitmore,
257 Or App 664, 666,
307 P3d 552 (2013) (internal quotation marks omitted). Thus, we will review an issue
advanced by a party on appeal as long as that party provided
“the trial court with an explanation of his or her objection
that [was] specific enough to ensure that the court [could]
identify its alleged error with enough clarity to permit it
to consider and correct the error immediately, if correction
[was] warranted.” State v. Wyatt,
331 Or 335, 343,
15 P3d 22
(2000).
Here, petitioner does not identify, and we have not
found, any place in the record where petitioner raised any
issue as to the post-conviction court’s application of the
correct legal standard. The only discussion of the standard that the court would apply in considering petitioner’s
Church motion occurred during the above colloquy, in
which the court said “you need to establish to this Court,
by a preponderance that—that these claims should be
filed and included in your petition,” and petitioner simply
replied, “Fair enough.” Nothing in that colloquy drew the
petitioner’s complaint about counsel is legitimate,” and not whether the asserted
grounds for post-conviction relief are themselves legitimate, Bogle, 363 Or at 473,
it is not clear to us that the court intended to say that the potential merits are
never relevant to that determination, even if they might bear on whether the
failure to advance certain claims demonstrated a lack of professional skill and
judgment. We express no opinion on that matter.
Cite as
312 Or App 676 (2021) 681
post-conviction court’s attention to any error it might seek
to avoid. See Wyatt,
331 Or at 343. Nor did it put the superintendent on notice of petitioner’s position regarding the applicable legal standard so that he could, if appropriate, argue
for a different standard or make a different record in an
effort to satisfy petitioner’s standard. Whitmore,
257 Or App
at 666. Indeed, given the state of the record, it is not readily
apparent to us whether, in fact, the post-conviction court
even applied the legal standard that petitioner now contends
was erroneous. Given those circumstances, we conclude that
petitioner’s arguments on appeal are not preserved, and we
therefore decline to address them.5 Accordingly, we affirm.
Affirmed.
5
In Bell v. Hendricks, 301 Or App 216, 220,
456 P3d 378 (2019), rev den,
366
Or 292 (2020), we stated that a Church motion preserves, under then-controlling
authority, an argument that the court failed to consider and rule on the motion as
required by Bogle. Bell does not, however, suggest that the mere filing of a Church
motion preserves any argument as to how the court decided a Church motion that
it did consider and rule on.
