Ingle v. Matteucci

                                       416

 Argued and submitted December 18, 2020, affirmed October 27, 2021, petition
               for review allowed April 21, 2022 (

)
                       See later issue Oregon Reports


                 MATTHEW DANIEL INGLE,
                      Petitioner-Appellant,
                                v.
                     Dolores MATTEUCCI,
             Superintendent, Oregon State Hospital,
                     Defendant-Respondent.
                 Marion County Circuit Court
                     18CV09971; A170009
                                   

     On appeal from a judgment denying post-conviction relief, petitioner argues
that the post-conviction court erred in dismissing his petition as untimely.
Petitioner acknowledges that he filed his petition over eight years after the two-year statute of limitations in ORS 138.510(3) would normally start running. He
contends that there is a triable issue as to whether the escape clause applies,
however, because his personal mental health circumstances were such that he
could not reasonably have raised his post-conviction claim during the limitations
period. In support of that argument, petitioner contends that the Supreme Court
implicitly overruled Fisher v. Belleque, 

, 

, rev den, 

 (2011), in Gutale v. State, 

, 

 (2019). Held: The
post-conviction court did not err in dismissing the petition as untimely. Under
Fisher, the court correctly declined to consider petitioner’s personal characteristics in determining whether there was a triable issue. Gutale did not implicitly
overrule Fisher.
    Affirmed.




    Lindsay R. Partridge, Judge.
   Lindsey Burrows argued the cause for appellant. Also
on the opening brief were Bruce A. Myers, Certified Law
Student, and O’Connor Weber LLC. Also on the reply brief
was O’Connor Weber LLC.
   Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen R.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
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 (2021)   417

  AOYAGI, J.
  Affirmed.
  Tookey, J., dissenting.
418                                         Ingle v. Matteucci

        AOYAGI, J.
          On appeal from a judgment denying post-conviction
relief, petitioner argues that the post-conviction court erred
in dismissing his petition as untimely. Petitioner acknowledges that he filed his petition over eight years after the
two-year statute of limitations in ORS 138.510(3) would normally start running. He contends that it was nevertheless
error to dismiss the petition, because his allegations were
sufficient to raise a triable issue regarding the escape clause.
Specifically, petitioner contends that his personal mental
health circumstances during those eight years (as described
in the petition)—which included his suffering from schizophrenia and taking psychotropic medications—were such
that he could not reasonably be expected to pursue a post-conviction claim any earlier than he did. Or, to use the statutory language, petitioner contends that his claim for relief
“could not reasonably have been raised” within two years of
the date that the judgment of conviction was entered, ORS
138.510(3), due to his personal mental health circumstances.
        In so arguing, petitioner squarely raises the question
whether a post-conviction court must consider a petitioner’s
individual mental health circumstances—something unique
to the petitioner—in applying the escape clause in ORS
138.510(3). That is fundamentally a question of statutory
construction, i.e., the enacting legislature’s intent. The
Supreme Court recently left this very question open in
Perez-Rodriguez v. State of Oregon, 

, 

 (2019), recognizing that it is “not an easy” question,
and resolving the case before it on other grounds.
         In this case, we conclude that, although the Supreme
Court has yet to finally resolve the matter, we are bound
by our controlling precedent, Fisher v. Belleque, 

, 

, rev den, 

 (2011). Petitioner contends that the Supreme Court implicitly overruled Fisher
in Gutale v. State of Oregon, 

, 

(2019), a case decided on the same day as Perez-Rodriguez,
but we are not persuaded that that is so. In our view, while
the issue remains open in the Supreme Court, Fisher is controlling precedent in our court and remains good law until
the Supreme Court decides otherwise. Petitioner has not
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asked us to overrule our own precedent, under the “rigorous” standard articulated in State v. Civil, 

, 

 (2017), nor are we inclined to do so sua
sponte based on the arguments that have been made. That
is, we are not convinced that the holding in Fisher is “plainly
wrong.” 

 We are also cognizant that “[s]tare decisis is at its
zenith in the area of statutory construction.” State v. Merrill,

, 

 (2020), adh’d to as modified on recons, 

, 

, rev den, 

 (2021).
        For those reasons, as described in more detail below,
we affirm.
                  STANDARD OF REVIEW
         When a post-conviction court dismisses a petition
as untimely on its face, as permitted by ORCP 21 A(9), we
review for legal error. Zsarko v. Angelozzi, 

, 

 (2016), rev den, 

 (2017). Our
review is limited to the face of the petition. 

 Like the post-conviction court, we must “assume the truth of all allegations in the petition and give petitioner, as the nonmoving
party, the benefit of all favorable inferences that could be
drawn from those allegations.” 

                            FACTS
        Consistent with the standard of review, we “draw
the facts from the petition, supplementing them with the
pertinent procedural facts.” 

         In 2009, petitioner killed two people when he ran
a red light while driving. Petitioner was charged with
second-degree manslaughter and driving under the influence of intoxicants. He waived a jury trial, proceeded with a
stipulated-facts trial, and was found guilty except for insanity (GEI) on both counts. Petitioner was placed under the
jurisdiction of the Psychiatric Security Review Board and
committed to the Oregon State Hospital for an indefinite
period not to exceed 20 years. The judgment was entered on
November 10, 2009. Petitioner did not appeal.
         Over eight years later, on March 14, 2018, petitioner filed a petition for post-conviction relief, which he
420                                        Ingle v. Matteucci

subsequently amended. In the operative petition, petitioner
claims that he received ineffective and inadequate assistance of counsel at trial. He alleges that his trial counsel
“knew or should have known” before trial that petitioner
was “confused” and “unable to meaningfully track and
understand conversations” due to “extremely powerful psychotropic medications” that “petitioner was provided with,
and encouraged to take, in an attempt to treat his diagnosed schizophrenia.” Petitioner alleges that his trial counsel nonetheless “attempted to explain the concept of the
defense of [GEI] and the benefits and full consequences of
that defense,” which petitioner could not “fully appreciate”
because of his mental condition and medicated state.
         According to petitioner, his trial counsel “failed to
ensure petitioner had a full understanding of what it meant
to be found [GEI] before encouraging him to waive his right
to a jury trial in pursuit of that outcome,” whereas trial
counsel exercising reasonable professional skill and judgment would have realized the likely effect of petitioner’s
medications, “reiterated the concept” of GEI on a level that
petitioner could understand, and ensured that petitioner
could “parrot the basics” of GEI back to counsel, including its consequences. Petitioner alleges that, as a result of
trial counsel’s errors and omissions, he did not understand
the consequences of being found GEI, including that he
would “likely” spend 20 years at the Oregon State Hospital.
Petitioner alleges that, had he “fully comprehended” the
consequences of a GEI finding, he would have insisted on a
jury trial, instead of agreeing to a stipulated-facts trial.
        As for the timing of his petition, petitioner acknowledges that, under ORS 138.510(3)(a), his petition normally
would have had to been filed by November 10, 2011, two
years after the date of entry of the judgment of conviction.
Petitioner alleges that the escape clause applies, however,
because, “[b]etween November 10, 2009 and November 10,
2011 (limitations period), petitioner was intellectually
disabled as a result of his diagnosed schizophrenia and
his forced consumption of extremely powerful psychotropic medications.” Petitioner alleges that, during that two-year period, his “mental disease and consumption of prescribed medications … substantially impaired his ability
Cite as 

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to concentrate, to reason, to understand the legal remedies
available to challenge his convictions, and to understand
the legal proceedings that resulted in his imposed sentence.” He further alleges that his “mental disease substantially impaired his ability to read and comprehend
legal documents related to those proceedings and deprived
him of the ability to appreciate, identify, allege, and support with the requisite evidence the claim for relief alleged”
in his petition.1 As a result, he asserts, “the information
required to timely raise the grounds for relief alleged [in the
petition] was not reasonably available to petitioner during
the two-year period following entry of his judgment of
convictions.”
        The superintendent moved to dismiss the petition as untimely under the statute of limitations in ORS
138.510(3). See ORCP 21 A(9) (allowing a party to move to
dismiss a claim, before filing an answer, on the ground “that
the pleading shows that the action has not been commenced
within the time limited by statute”).
        The post-conviction court granted the superintendent’s motion and dismissed the petition. In doing so,
the court concluded that the allegations in the complaint,
taken as true, were insufficient to trigger the escape clause.
The court explained that it believed that existing Court of
Appeals precedent required that result:
      “The problem in your case is that my reading of what
   the courts that are above me tell me is that … just
   because you have a mental illness and that mental illness
   prevents you from being able to access the legal process,
   that doesn’t allow me to apply the exception. … And the
     1
       The petition references an attached declaration by petitioner. See
BoardMaster Corp. v. Jackson County, 

, 

 (2008)
(allowing consideration of exhibits attached to a pleading and incorporated
therein, when reviewing a dismissal on the pleadings). The declaration is consistent with the petition. For example, in his declaration, petitioner attests
that, at the time of the car crash, he had been diagnosed with schizophrenia
and had recently begun taking “very powerful psychotropic medications”; that
he “remained heavily medicated for years to come; and that from November 10,
2009 (when he was convicted) until March 14, 2018 (when he filed his original
post-conviction petition), he was unable to adequately concentrate on a single
subject, to logically reason and understand legal remedies available to him, and
to understand the legal proceedings that resulted in his convictions.
422                                             Ingle v. Matteucci

   difficulty I’m having in your case is that the caselaw that is
   above me I don’t think allows me to let the case go forward.
   Although one of my concerns is that there is an allegation
   of forced medication. But then I’m also hearing from you
   today that for a period of time you felt just fine. You weren’t
   taking your medication. And for a period of time you felt
   like you were sufficient enough you could leave the State
   Hospital. So that kind of counteracts the argument that
   you would’ve been unable during that period of time to file
   a post-conviction petition. So it’s my judgment that under
   the law that I [have] to grant the State’s motion to dismiss.
      “Now, you will have an opportunity to have my decision challenged and reviewed by the Court of Appeals.
   And I hope you do because there are some concerns I have
   about some of the decisions. The cases that I believe that
   [your counsel] has cited really deal with situations where
   someone in the legal system misinformed the petitioner
   or somehow made a mistake that … prevented the post-conviction case from going forward. That’s really not what
   the situation is here. My judgment is that the cases that
   I read from the Court of Appeals that deal with mental
   health issues are [deciding] that mental health issue is not
   a reason to allow an exception to the statute of limitations;
   the two-year statute of limitations.
      “And so I really find that the circumstances are much
   more similar here to Fisher[, 

,] and Colon-Lebron [v. Taylor, 

, 

, rev den,
   

 (2018),] than they are to Winstead [v. State of
   Oregon, 

, 

 (2017),] or Terrance
   (phonetic) or—I know there’s a third case—that were cited.
   And so ultimately, you’ll have an opportunity to have the
   Court of Appeals review my decision and see whether or not
   they agree with me. So that’s going to be my decision today.”
         Petitioner appeals. He argues that the allegations in
his petition are sufficient to raise a triable issue regarding
the escape clause in ORS 138.510(3), precluding dismissal
on the pleadings. The superintendent disagrees, countering that, under Fisher, 

, a post-conviction
court may not apply the escape clause in ORS 138.510(3)
based on a petitioner’s intellectual disability or diminished
mental capacity having interfered with his ability to file a
timely petition. In his reply brief, petitioner asserts that
Gutale implicitly overruled Fisher.
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                          ANALYSIS
         Under ORS 138.510(3), a petition for post-conviction
relief must be filed within two years of the entry of the judgment of conviction (or, if applicable, the exhaustion of any
appeals2), unless the court “finds grounds for relief asserted
which could not reasonably have been raised” within the
two-year limitations period. The stated exception is commonly called the “escape clause,” and its purpose “is to give
persons extra time to file petitions for post-conviction relief
in extraordinary circumstances.” Bartz v. State of Oregon,

, 

 (1992).3
         For 30 years, Bartz has instructed us to construe
the escape clause “narrowly,” 

, although, as the
Supreme Court recently noted, Bartz did not “attempt to
identify the boundaries of what counts as extraordinary or
to define just how narrowly to construe the escape clause.”
Gutale, 

. We and the Supreme Court have
endeavored to define those boundaries for three decades
by deciding the post-conviction cases that come before us.
In the process, it has been established that “extraordinary
circumstances” that may trigger the escape clause in ORS
138.510(3) (or the identical escape clause for successive petitions in ORS 138.550(3)) include newly discovered facts that
were not reasonably available during the statutory period4
and changes to the law that were not reasonably foreseeable
during the statutory period.5 Recently, we held that state-
     2
       If an appeal is taken from the judgment of conviction, the statute starts
running as provided in ORS 138.510(3)(b) - (c).
     3
       On its face, ORS 138.510(3)’s escape clause applies when “the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition.” However, the Supreme
Court has construed that language to encompass situations involving the late
filing of an original petition. Bartz, 

 (holding, after analyzing
the “ambiguous” statutory language, that the exception in ORS 138.510(3) (previously numbered ORS 158.510(2)) “does not require the filing of a timely ‘original
or amended’ petition as a prerequisite to the filing of an untimely petition”).
     4
       See Verduzco v. State of Oregon, 

, 

 (2015) (a
petitioner who alleges “that they could not reasonably have raised a ground for
relief earlier because those grounds depended on newly discovered facts” must
persuade the post-conviction court “that the facts on which their new grounds for
relief depended could not reasonably have been discovered sooner”); Gutale, 

 (quoting Verduzco for same point).
     5
       See Verduzco, 

 (a petitioner who alleges that they could not reasonably have raised a ground for relief earlier because it depended on a change in
424                                                      Ingle v. Matteucci

caused deprivation of access to legal materials during the
statutory period may also trigger the escape clause.6
         What is also established—or at least has been established up until this point—is that a petitioner’s unique personal characteristics are not relevant to the escape clause.
Because of the phrasing of the escape clause, the fundamental question is “whether the petitioner reasonably could
have raised [the asserted] grounds for relief earlier, a question that calls for a judgment about what was ‘reasonable’
under the circumstances.” Verduzco v. State of Oregon, 

, 

 (2015). In making that judgment
call, existing precedent has always focused on any reasonable person in the petitioner’s situation—or the petitioner’s
counsel’s situation, if the petitioner was represented during
the relevant time—without consideration of the petitioner’s
unique personal characteristics.
         This case involves petitioner’s mental health, or,
as he describes it, an “intellectual disability,” which is a
type of personal characteristic unique to petitioner. In
Fisher, we held that a petitioner’s diminished capacity due
to mental disorders was not relevant to the escape clause
in ORS 138.510(3) and affirmed the dismissal of his petition as untimely. 

. Much like petitioner
in this case, the petitioner in Fisher waited nine years to
file a post-conviction petition alleging inadequate assistance of counsel. 

 When he finally filed, he argued that
he came within the escape clause because his mental health
conditions during the statutory period—specifically, clinical
depression, dysthymic disorder, and post-traumatic stress
disorder—had prevented him from filing a timely petition.

. Importantly, he did not allege only that he had
mental health conditions; he expressly alleged that they had

the law must establish that the issue could not reasonably have been “anticipated
and raised” in the statutory period; whether a claim “reasonably could have been
raised earlier will vary with the facts and circumstances of each claim,” including whether the change in the law involved “settled” principles or “novel” ones).
    6
      See Canales-Robles v. Laney, 

, 

 (2021)
(reversing the dismissal of petition as untimely, where the petitioner was incarcerated in a state facility that lacked legal materials, thus denying him access
to the Oregon statutes, unlike the general public; “This lack of availability was a
condition shared by all juveniles housed at MacLaren at that time and a deprivation caused by the state.”).
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interfered with his ability to file a timely petition. 

 On
summary judgment, the post-conviction court dismissed his
claims as untimely, “explaining that ‘ORS 138.510(3) does
not set forth mental disease or defect as a ground for tolling
the limitations period.’ ” 

 (quoting post-conviction court).
         On appeal, the petitioner in Fisher again contended
that, “as a result of his mental illness, he could not reasonably have raised [his claims] in a timely manner.” 

 After
considering the text and context of the statute and existing precedent, we affirmed. Of particular note, we pointed
to the legislature’s enactment of “a statute that tolls specified statutes of limitation because of an individual’s mental or legal incapacity,” ORS 12.160, which “does not apply
to actions subject to the two-year limitation period of ORS
138.510(3).” Id. at 409. We also surveyed existing case law,
observing that “judicial construction of ORS 138.510(3) has
emphasized that the availability of information forming the
grounds for post-conviction relief is the statute’s focus.” Id.
In each precedent that we discussed, there was no consideration of the personal characteristics of the petitioner. See
id. at 409-10. Ultimately, we concluded as a matter of statutory construction that the petitioner’s assertion—that,
“although the information [relevant to his claim] existed
and was available, his failure to act on it was reasonable in
light of his mental condition”—was “simply not enough to
trigger the escape clause.” Id. at 411.
         Fisher is directly on point.7 So is Colon-Lebron v.
Taylor, 

, 

 (2018), in which we
     7
       The dissent seeks to distinguish Fisher based on a statement in Fisher that
there was “no contention that any of the grounds for relief alleged in the petition
is based on information that did not exist or that was not reasonably available
to petitioner within the two years following the entry of the appellate judgment.”
Fisher, 

; see 315 Or App at 453 (Tookey, J., dissenting) (citing same). In context, it is apparent that we did not mean that the “reasonably
available” standard was not at issue. To the contrary, the petitioner’s argument
in Fisher was that the information relevant to his claim existed in the world
and was reasonably available to him insofar as there was no external impediment to his accessing it, but that his own “mental illness rendered him incapable
of appreciating the significance of the information that was plainly available.”
Id. at 410-11. “In other words, petitioner contend[ed] that, although the information existed and was available, his failure to act on it was reasonable in light of
his mental condition.” Id. at 411. The substance of the petitioner’s argument in
Fisher was the same as petitioner’s argument in this case.
426                                        Ingle v. Matteucci

affirmed the dismissal of a petition for post-conviction relief
as untimely under ORS 138.510(3), where the petitioner
argued “that he suffers from mental disabilities that prevent him from making timely decisions, including whether
to file a post-conviction petition,” because that argument
was “foreclosed by our decision in Fisher.” We described
Fisher as “holding that the petitioner’s mental illness, which
rendered him incapable of appreciating the significance of
publicly available information, was not sufficient to trigger
the escape clause of ORS 138.510(3).” Id.
        Under controlling precedent, we therefore must
affirm the post-conviction court’s dismissal of the petition
in this case—unless, of course, petitioner is correct that
Gutale implicitly overruled Fisher. Upon consideration, we
are unpersuaded that it did.
         The Supreme Court recently decided two post-conviction cases on the same day: Gutale and Perez-Rodriguez. In Gutale, the petitioner pleaded guilty to a
Class A misdemeanor and, years later, learned—when
deportation proceedings were instituted against him—that
there were potential immigration consequences to his plea.
364 Or at 504. The petitioner had told the court at sentencing that he was pleading guilty in part because he wanted
to obtain United States citizenship. Id. Yet neither his trial
counsel nor the trial court informed him that his conviction
could have immigration consequences. Id. Under Padilla v.
Kentucky, 

, 

, 

(2010), trial counsel was obligated to advise him at least of
the risk of adverse immigration consequences, and, under
ORS 135.385(2), the trial court also was required to inform
him that a criminal conviction could result in deportation or
other immigration consequences. Gutale, 

. The
petitioner alleged that, because of the omissions of his trial
counsel and the sentencing court, “he did not know that his
conviction could affect his immigration status and that he
remained unaware of that fact until he was detained by ICE
after the limitations period expired.” 

.
         In that context, the Supreme Court explained that,
under existing case law, whether a claim for post-conviction
relief could not reasonably have been raised earlier turns
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 (2021)                             427

not only on whether “a petitioner could have found the law if
he or she had looked” (in that it was publicly available) but
also whether “there was a reason for the petitioner to look for
it.” Id. at 511. Analogizing to the “should have known” standard for civil discovery rules, the court concluded that the
petitioner’s allegations raised a triable issue as to whether
a reasonable person in the petitioner’s situation would have
had reason to look into the law regarding potential immigration consequences. Id. at 512-13. It was therefore error for
the post-conviction court to dismiss the petition as untimely
on its face. Id. at 520 (recognizing the possibility that “the
factual record will ultimately reveal that petitioner had
information about the immigration consequences of his conviction sooner,” but concluding that his allegations, taken as
true, created a triable issue).
          In reaching that conclusion, the court emphasized
that the petitioner in Gutale had been unrepresented while
the statute of limitations was running. Id. at 519. Because
of the realities of when court-appointed counsel is available, post-conviction petitioners filing successive petitions
are likely to have been represented by counsel at a time
when their new claims potentially could have been raised,
which is why case law regarding the escape clause in ORS
138.550(3) typically focuses on counsel. See ORS 138.550(3)
(generally barring successive petitions, subject to an escape
clause identical to that in ORS 138.510(3)); Perez v. Cain,

, 

 (2020) (“Under ORS 138.550(3),
… we analyze whether a claim reasonably could have been
raised from counsel’s perspective; petitioner’s age and other
personal characteristics have no role in the analysis.”). By
contrast, petitioners filing an original petition frequently
will have lacked legal representation during the statutory
period, such that the focus is on the petitioner. Perez, 

. That was relevant in Gutale, because, “[a]lthough
counsel may be responsible for knowing that there may be
immigration consequences to a criminal conviction, we do
not presume that to be the case for an individual petitioner,
unless there is a factual basis for concluding that the petitioner knew that there may be immigration consequences to
his or her conviction.” 364 Or at 519. No such factual basis
existed in Gutale. Id. at 520.
428                                         Ingle v. Matteucci

         On the same day that the Supreme Court decided
Gutale, it also decided Perez-Rodriguez. In Perez-Rodriguez,
the Supreme Court expressly left open the question “whether
a petitioner’s mental illness and intellectual disability may
ever justify applying the escape clause” in ORS 138.510(3).
364 Or at 498. The court did not need to resolve that threshold question because it concluded that, even if the answer
was affirmative, the petitioner’s allegations would not create
a triable issue regarding the escape clause. Id. at 499 (“We do
not need to resolve that question in this case, because, even if
a petitioner’s mental illness and intellectual disability could
justify applying the escape clause, petitioner’s specific allegations here would not justify applying the escape clause in
this case.” (Emphasis in original.)). The court explained why
it was “hesitant to definitively resolve” the threshold question, which essentially reduced to the question being “not an
easy one” (for reasons described in some detail) and to the
parties’ arguments being “significantly underdeveloped” and
largely repetitive of the arguments made in Gutale, “even
though these cases are factually distinct.” Id. at 498-99.
         We are unpersuaded that Gutale implicitly overruled
Fisher. As a preliminary matter, the fact that the Supreme
Court expressly left open in Perez-Rodriguez the exact question presented in this case makes it clear that the Supreme
Court has not actually decided the issue before us, in Gutale
or otherwise. As for whether the reasoning of Gutale undermines Fisher, we note that there is one piece of our statutory
construction in Fisher that the Supreme Court has rejected.
In a footnote in Gutale, the Supreme Court rebuffed an argument that the state likely drew from Fisher (although Fisher
is not mentioned). Specifically, the court rejected the state’s
suggestion that the legislature’s use of the passive voice in
ORS 138.510(3) rendered “the actor inconsequential to [the]
analysis,” concluding that, in context, “it is the petitioner
who reasonably must have raised the grounds.” Gutale, 

 n 6; see Fisher, 

 (relying in part
on the legislature’s use of passive voice in analyzing ORS
138.510(3)). Accordingly, that one piece of our statutory
analysis in Fisher is no longer viable. However, we do not
view that as undermining Fisher to the point that its holding is no longer good law. The rejected piece of the analysis
Cite as 

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is not so central to the conclusion as to cause it to fall apart
without it. See Fisher, 

.
          Further, that is not the aspect of Gutale on which
petitioner focuses. Petitioner focuses instead on Gutale’s reference to a petitioner’s “situation.” As previously mentioned,
Gutale frames the relevant inquiry as being whether “the
petitioner reasonably could have accessed the ground for
relief and whether a reasonable person in the petitioner’s
situation would have thought to investigate the existence
of that ground for relief.” 364 Or at 512 (emphasis added).
That statement makes perfect sense in the context of
Gutale. However, we disagree with petitioner’s suggestion
that a petitioner’s “situation” is synonymous with a petitioner’s personal characteristics, including mental health
conditions. Not only does the court’s same-day decision in
Perez-Rodriguez foreclose such a broad reading of Gutale,
but the court in Gutale itself considered the petitioner’s “situation” only insofar as it considered what the petitioner had
been told (or not told) about immigration consequences when
he entered his guilty plea and what a “reasonable person”
would have understood as a result. See Gutale, 

. The court did not consider any personal characteristics of the petitioner. See 

          Finally, it is important to recognize that Gutale
applies existing principles of post-conviction case law and
contains no indication that the court intended to change the
law. See Gutale, 

; but see also 

(Balmer, J., dissenting) (taking the view that the majority’s
opinion is less in line with existing case law than it claims).
It is possible that Gutale signals a subtle change in thinking
about the escape clause in ORS 138.510(3) that may eventually lead to Fisher being overruled. We do not exclude that
possibility. However, nothing in Gutale suggests to us that
Gutale itself overrules Fisher or the long line of prior cases
on which we relied in Fisher.
         In sum, petitioner has failed to persuade us that
Gutale implicitly overruled Fisher. Fisher therefore remains
controlling precedent in this court. Under Fisher, a petitioner’s allegation that his mental illness rendered him personally unable to appreciate the significance of available
430                                                       Ingle v. Matteucci

information is insufficient to trigger the escape clause in
ORS 138.510(3). It follows that the post-conviction court did
not err when it dismissed petitioner’s petition as untimely,
notwithstanding petitioner’s allegations that his mental
health circumstances and intellectual disability made him
incapable of appreciating the information relevant to his
claim.
         We note that petitioner has not asked us to overrule
Fisher ourselves. Nor are we inclined to do so sua sponte,
based on the arguments that have been made, and given
the “rigorous” standard for overruling our own precedent
articulated in Civil, 

. “Stare decisis is at
its zenith in the area of statutory construction.” Merrill, 

. “We will overrule prior statutory interpretation only in extraordinary circumstances—when such
prior interpretation was plainly erroneous”—which “ ‘usually occurs when our precedent cannot be reconciled with
the result that would follow application of a prescribed (or
subsequently prescribed) mode of analysis or when we are
presented with a qualitatively new, potentially dispositive
contention not previously raised and addressed.’ ” 

 at 120
(quoting Civil, 

). We are not persuaded
that Fisher is irreconcilable with subsequent case law (as it
exists at this time) or is otherwise “plainly wrong.”8
         The Supreme Court ultimately may decide that the
legislature that enacted ORS 138.510(3) did intend for post-conviction courts to consider a petitioner’s mental health
or other personal characteristics when applying the escape
clause. As recognized in Perez-Rodriguez, 

,
there are competing arguments and considerations relevant to that question. The dissent makes some points about

    8
      We have previously described Fisher as a “considered” decision “based on
engaged analysis.” Hernandez-Zurita v. State of Oregon, 

,

 (2018), vac’d, 

, 

 (2019) (declining to overrule
Fisher). After deciding Gutale and Perez-Rodriguez, the Supreme Court vacated
our decision in Hernandez-Zurita and remanded the case to us, and we then
remanded the case to the trial court for reconsideration in light of Gutale, as
jointly requested by the parties. That subsequent history is unsurprising because
Hernandez-Zurita involved exactly the same issue as Gutale: a post-conviction
claim that the petitioner’s trial counsel failed to properly advise him of the immigration consequences of his guilty plea, which he allegedly discovered only upon
his deportation more than two years later. Id. at 623.
Cite as 

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legislative history that may prove helpful. See 315 Or App
at 444-45 (Tookey, J., dissenting); but see also Gutale, 

 (Balmer, J., dissenting) (arguing that the legislative history favors a narrower construction of the escape
clause). If the court does go that way, it will presumably need
to address the identical escape clause in ORS 138.550(3),
which it has previously construed as not allowing consideration of the personal characteristics of the petitioner—or,
presumably, the petitioner’s lawyer. Perez, 

.
There is also the fact that all petitioners have personal
characteristics. Even if one somehow limits the personal
characteristics relevant to the escape clause to intellectual
disabilities or mental health conditions, it is uncertain how
“narrow” a class of petitioners that is. See Gutale, 

 (considering the “narrow class of petitioners” affected by
its decision as supporting the outcome). Finally, there is the
difficulty of administrability, which the Supreme Court has
already recognized. See Perez-Rodriguez, 

 (recognizing that at least part of the reason that, “[f]requently,
reasonableness standards do not consider an actor’s mental
illness or intellectual capacity” is “because of the problems
of administrability that would be encountered” (internal
quotation marks omitted)).
         There is no existing precedent for a post-conviction
court to consider the personal characteristics of a petitioner
in applying the escape clause in ORS 138.510(3). That, of
course, in no way precludes the Supreme Court from deciding that the legislature intended such consideration and
that post-conviction courts must give such consideration.
Until and unless that happens, however, Fisher is controlling authority in this court, with respect to consideration of a petitioner’s personal mental health circumstances
or intellectual disability, and it is dispositive in this case.
Accordingly, we affirm.9
            Affirmed.

    9
      Were the Supreme Court to overrule Fisher and hold that a petitioner’s
alleged intellectual disability or mental illness must be considered for purposes
of the escape clause in ORS 138.510(3), we would likely agree with the dissent
that petitioner’s allegations in this case would suffice to create a triable issue. See
315 Or App at 449-53 (Tookey, J., dissenting). Given our disposition, however, we
need not conclusively opine on that issue.
432                                         Ingle v. Matteucci

        TOOKEY, J., dissenting.
         This case calls upon us to consider mental illness
in relationship to the application of the “escape clause” set
forth in ORS 138.510(3). That escape clause “allow[s] petitioners to escape the consequences of an untimely filing if
the claims for relief could not reasonably have been raised”
within the two-year limitation period, Canales-Robles v.
Laney, 

, 

 (2021), and its purpose is, at bottom, to ensure that post-conviction petitioners
are not unfairly denied access to justice.
         In this case, petitioner argues that his untimely
petition falls within the escape clause, because during the
limitation period, the circumstances of his mental illness
substantially impaired his ability to read, to think, and to
comprehend the legal remedies available to him.
         As the majority observes, petitioner’s argument
raises a threshold question: whether mental illness can ever
justify application of the escape clause. 315 Or App at 418.
Guided by the recent Supreme Court decisions in Gutale
v. State of Oregon, 

, 

 (2019), and
Perez-Rodriguez v. State of Oregon, 

, 

(2019), I would answer that question in the affirmative and
reverse the dismissal of petitioner’s petition. The majority,
however, answers that question in the negative, relying on
an earlier decision of this court, in Fisher v. Belleque, 

, 

, rev den, 

 (2011), to support
its view that “a petitioner’s unique personal characteristics”
are “not relevant” to the escape clause analysis, and therefore, we must affirm the dismissal of petitioner’s petition
as untimely. 315 Or App at 424, 425-26. Thus, according to
the majority, a petitioner’s mental illness—no matter how
profound and prolonged—cannot justify application of the
escape clause.
         I disagree with the majority’s view. Instead, as
explained below, I would conclude that, in certain circumstances, a petitioner’s mental illness is relevant to—and can
justify application of—the escape clause; that such application is consistent with recent Supreme Court case law
regarding the escape clause and with the legislative purpose
behind the escape clause (i.e., to ensure a petitioner’s access
Cite as 

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to justice); and that Fisher does not foreclose application of
the escape clause in this case.
         I would further conclude that a petitioner’s mental
illness is, by itself, not enough to justify application of the
escape clause; rather, to justify application of the escape
clause, a petitioner must allege not only the existence of a
mental illness but also some additional fact or facts about
how, due to that mental illness, a reasonable person in the
petitioner’s situation would not have thought to investigate
the existence of the asserted ground for relief during the
limitation period.
          In light of that conclusion, and for the reasons that
follow, I would reverse the post-conviction court’s dismissal
of petitioner’s petition and remand. On that basis, I respectfully dissent, and I would resolve the case as follows.
               I. STANDARD OF REVIEW
         We review a post-conviction court’s dismissal of
a petition as untimely for legal error. Zsarko v. Angelozzi,

, 

, rev den, 

(2017). Our review “is limited to the face of the [petition],”

 “including exhibits incorporated by reference” in that
petition, Boardmaster Corp. v. Jackson County, 

, 

 (2008). In conducting our review, “we
assume the truth of all allegations in the petition and give
petitioner, as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations.”
Zsarko, 

 (internal quotation marks omitted). Consistent with that standard, “we draw the facts from
the petition, supplementing them with the pertinent procedural facts.” 

              II. FACTUAL BACKGROUND
         On November 10, 2009, petitioner appeared at a
stipulated-facts trial and was found guilty except for insanity of second-degree manslaughter and driving under the
influence of intoxicants. He was subsequently placed under
the jurisdiction of the Psychiatric Security Review Board
(PSRB) and committed to the Oregon State Hospital (OSH)
for a period of time not to exceed 20 years. Petitioner did not
appeal those 2009 convictions.
434                                                        Ingle v. Matteucci

         More than eight years later, in 2018, petitioner
filed a petition for post-conviction relief, alleging that he
had received ineffective assistance of counsel at his trial.1
His petition admitted that it was untimely under the two-year limitation period in ORS 138.510(3) but asserted
that it came within the “escape clause” of ORS 138.510(3)
because “petitioner was intellectually disabled as a result of
his diagnosed schizophrenia and his forced consumption of
extremely powerful psychotropic medications.”
           Petitioner’s petition further alleged that
        “petitioner’s mental disease and consumption of prescribed medications … substantially impaired his ability
    to concentrate, to reason, to understand the legal remedies
    available to challenge his convictions, and to understand
    the legal proceedings that resulted in his imposed sentence. Petitioner’s mental disease substantially impaired
    his ability to read and comprehend legal documents related
    to those proceedings and deprived him of the ability to
    appreciate, identify, allege, and support with the requisite
    evidence, [his post-conviction] claim for relief.”
          Additionally, in a declaration attached to and referenced in his petition, petitioner explained the circumstances of his mental health that persisted throughout the
limitation period and prevented him from timely filing his
petition:
       “I was diagnosed with schizophrenia prior to the alleged
    acts that resulted in my above-listed criminal charges.
    I had recently begun treatment for that ailment, which
    included the daily ingestion of very powerful psychotropic
    medications.
        “…
        “I remained heavily medicated for years to come. As a
    result, on or between November 10, 2009, and the time of
    filing my original petition in this case, [i.e., March 4, 2018,]
    I was unable to:
        “(a) Adequately concentrate on a single subject;

    1
      Petitioner originally filed his petition pro se, then filed an amended petition
with assistance from counsel, and later filed a second amended petition, which is
the petition at issue in this appeal, and which I refer to throughout the opinion as
simply the “petition.”
Cite as 

 (2021)                               435

        “(b) To logically reason and understand legal remedies
     available to me that would allow me to challenge my convictions; and
        “(c) To understand the legal proceedings that resulted
     in my convictions.”
         Petitioner’s petition concluded that, “[b]ased on
the conditions of petitioner’s confinement and his substantially impaired mental condition, the information required
to timely raise the grounds for relief alleged [w]as not reasonably available to petitioner during the two-year period
following entry of his judgment of convictions.”
         In response, the state moved under ORCP 21 A(9) to
dismiss petitioner’s petition as untimely under the two-year
limitation period in ORS 138.510(3). The post-conviction
court granted the state’s motion to dismiss, ruling that the
petition was both untimely and did not fall within the escape
clause.
          On appeal, petitioner assigns error to the post-conviction court’s dismissal of his petition as untimely. He
argues that his petition falls within the escape clause of
ORS 138.510(3) because personal circumstances related to
his mental illness “prevented him from reasonably being
able to raise his [post-conviction] claim within the limitations period,” and that “[t]hose circumstances were sufficient to survive the state’s motion to dismiss the petition
as untimely.” The state responds that under our decision in
Fisher v. Belleque, 

, 

, rev den,

 (2011), “ORS 138.510(3)’s escape clause [does not]
allow late post-conviction claims solely because the petitioner’s
diminished mental capacity interfered with [his] ability to
file a timely petition.”
         As explained below, I would conclude that petitioner’s
petition falls within the escape clause of ORS 138.510(3).
                        III.   ANALYSIS
A.    The Escape Clause of ORS 138.510(3)
        Under ORS 138.510(3), a petition for post-conviction
relief must be filed within two years of the date of conviction, unless the petition falls within that statute’s “escape
436                                                     Ingle v. Matteucci

clause.”2 The escape clause provides that a petitioner may
file an untimely petition by asserting “grounds for relief
… which could not reasonably have been raised” within
the two-year limitations period. ORS 138.510(3) (emphasis
added). The meaning of that clause is a matter of statutory
construction. And, under our normal principles of statutory
construction, the first level of analysis calls for examining
not only the statutory text, in context, but also prior judicial
constructions of that text, which are binding on this court.
See, e.g., Liberty Northwest Ins. Corp., Inc. v. Watkins, 

, 

 (2010) (“As part of that first level
of analysis, this court considers its prior interpretations of
the statute.”). Accordingly, this dissent examines several
Supreme Court cases construing the escape clause in ORS
138.510(3), which provide necessary context for the remainder of the analysis in this case.
     1. Bartz v. State of Oregon
          In Bartz v. State of Oregon, 

, 

 (1992), the Supreme Court was called upon to construe
the escape clause. The petitioner in Bartz had filed a petition for post-conviction relief, asserting that his “trial counsel had failed to advise him of a possible statutory defense
to the charge” and that he had not learned of that defense
within the applicable limitation period. 

. The
Bartz petitioner contended that, because his trial counsel
failed to advise him of that possible defense, he “could not
reasonably have known of that defense within the [limitation] period” and, therefore, his petition fell within the
escape clause in ORS 138.510(3). 

.3
    2
      ORS 138.510(3) sets forth the statute of limitations for claims under the
Post-Conviction Hearing Act (PCHA) and provides, in relevant part:
         “A petition pursuant to [the PCHA] must be filed within two years of the
    following, unless the court on hearing a subsequent petition finds grounds for
    relief asserted which could not reasonably have been raised in the original or
    amended petition:
         “(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.”
    3
      At the time Bartz was decided, the applicable escape clause was codified
in subsection (2) of ORS 138.510. Although the escape clause was renumbered
as subsection (3) pursuant to later amendments to ORS 138.510, those amendments did not alter the text of the escape clause as relevant for our purposes.
Accordingly, throughout this opinion, we refer to the escape clause as it is currently numbered, i.e., ORS 138.510(3).
Cite as 

 (2021)                              437

          In undertaking its analysis, the court in Bartz recognized that ORS 138.510(3) is “ambiguous.” Id. at 357. That
is, it “does not explain precisely what kinds of circumstances
fulfill the [escape clause’s] requirement that an untimely
petition assert a ground for relief that ‘could not reasonably
have been raised’ in a timely petition.” Id. at 358 (quoting
ORS 138.510). The court determined that the applicability of
the escape clause turned on whether a petitioner’s asserted
ground for relief was “reasonably available” during the limitation period. Id. at 359-60; see also Brown v. Baldwin, 

, 

, rev den, 

 (1995)
(“Bartz makes it clear that the applicability of the escape
clause turns on whether the information existed or was reasonably available to the petitioner[.]”).
         Ultimately, the court concluded that the petitioner
did not fall within the escape clause, because the statutes
relevant to his defense had been published by the legislature, and it is “a basic assumption of the legal system” that
such publication is “sufficient to inform persons of statutes
that are relevant to them”; therefore, the court held, “the relevant statutes were reasonably available” to the petitioner.
Bartz, 

.
        In so holding, the court also explained that a review
of the relevant legislative history showed that the escape
clause was intended to “give persons extra time to file petitions for post-conviction relief in extraordinary circumstances” and was meant to be “construed narrowly.” 

.
    2. Gutale v. State of Oregon
        Nearly two decades later, in Gutale v. State of
Oregon, 

, 

 (2019), the Supreme Court
again considered the meaning of the escape clause.
         In Gutale, the petitioner filed for post-conviction
relief, alleging that his trial counsel was constitutionally
inadequate and ineffective for failing to inform him of the
immigration consequences of his conviction. 

. The
petitioner contended that he had only discovered counsel’s
failure when he was placed in deportation proceedings, after
the limitation period had already run. 

 In the petitioner’s
438                                           Ingle v. Matteucci

view, because “he could not reasonably have known of his
grounds for post-conviction relief within the limitations
period,” his petition fell within the escape clause. 

 In
response, the state argued that the petitioner’s position
was precluded by Bartz, because the relevant law regarding
immigration consequences is settled, and Bartz held that
“settled law is always reasonably available to a petitioner.”

.

         The court explained that it did “not read Bartz as
narrowing the escape clause as much as the state maintains,” and that “a ground for relief is reasonably available
only if there was a reason for the petitioner to look for it.”

. The court then explained,
       “What distinguishes the petitioner in Bartz and petitioner in this case is whether they had a reason to look for
   the existence of legal grounds for relief. For the petitioner
   in Bartz, the conviction itself put him on notice of the need
   to investigate the existence of a ground for relief. He was,
   of course, aware of that conviction at the time it occurred.
   It was, therefore, incumbent on the petitioner to look for
   legal challenges to his conviction. And the court concluded
   in Bartz that, given the public nature of legislative enactments, the legal grounds for the petitioner’s challenge
   would have been accessible to a reasonable person looking
   for such a legal challenge.

      “For petitioner in this case, however, his conviction
   may not have put him on notice of the need to investigate.
   Instead, petitioner alleges that it was the consequences of
   that conviction that caused him to conduct such an investigation. And those consequences are not always obvious,
   even to lawyers.”

 (emphasis added). Thus, the court concluded,
because the petitioner had no reason to look for the grounds
for relief alleged in his petition “until he was detained by
ICE after the limitations period expired,” the petitioner’s
petition would fall within the escape clause. 

.

         In reaching that conclusion, the court observed
that, “[a]ccording to the court in Bartz, the purpose of the
escape clause was ‘to give persons extra time to file petitions
Cite as 

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for post-conviction relief in extraordinary circumstances’ ”
and “should be ‘construed narrowly.’ ” 

 at 513-14 (quoting
Bartz, 

). But, the court pointed out, Bartz
did not “attempt to identify the boundaries of what counts as
extraordinary or to define just how narrowly to construe the
escape clause.” Gutale, 

. Regarding that point,
the court explained,
       “We understand the court in Bartz to have been appropriately concerned with reading the escape clause in a
   manner that would not allow the exception to swallow
   the rule. The facts presented by the petitioner in Bartz
   were unexceptional. It is not unusual for a petitioner to be
   unaware of the law pertaining to the crime of conviction.
   If that fact, without further qualification, were sufficient
   to bring a claim within the escape clause, then it is likely
   that most claims—and certainly most claims for ineffective
   assistance of counsel—would fall within the escape clause.
   That result would defeat the goal that the legislature was
   attempting to advance by passing the statute of limitations
   in the first place.”

 With Bartz’s concern about narrow construction in mind,
the court observed that “[t]his case does not present those
same concerns,” because “petitioners who were unaware
of the immigration consequences of their convictions are
a narrow class of petitioners,” and “[a]llowing petitioner’s
claim in this case to fall within the escape clause does not
run the risk of having the escape clause swallow the statute
of limitations.” 

          The court further observed that “[a]dditional analysis of the legislative history tells us little about the intended
scope of the escape clause.” 

. The court noted,
however, that that history does make clear “that the text
of the escape clause contained in ORS 138.510(3) [regarding the limitation period for initial petitions] is derived
from its ORS 138.550(3) counterpart [regarding successive
petitions].” 

. The court then explained that “[t]he
escape clause to the statute of limitations differs from
the escape clause to the bar on successive petitions in
one important respect”: The subject of the reasonableness
inquiry under ORS 138.550(3) is an attorney representing
the petitioner, whereas “the subject of the reasonableness
440                                                     Ingle v. Matteucci

inquiry in ORS 138.510(3) is an unrepresented petitioner.”

 (emphasis added).4
         Thus, consistent with the foregoing observations,
the court in Gutale clarified the standard for determining
whether a petition falls within the escape clause of ORS
138.510(3): Whether grounds for relief could not reasonably
have been timely raised turns on “whether the grounds for
relief were known or reasonably available to a petitioner,” 

 (emphasis added), which, in turn, requires “assessing both [(1)] whether the petitioner reasonably could have
accessed the ground for relief and [(2)] whether a reasonable person in the petitioner’s situation would have thought
to investigate the existence of that ground for relief,” 

 (emphasis added).
         The court noted that “that standard is very similar to the standard for a discovery rule, which is used in
other contexts.” 

. In other words, the reasonableness inquiry in ORS 138.510(3)’s escape clause “call[s] for a
judgment about what is reasonable under the circumstances”
of an unrepresented petitioner. 

 (internal quotation
marks omitted; emphasis added).
      3. Perez-Rodriguez v. State of Oregon
         On the same day that the Supreme Court decided
Gutale, it also decided Perez-Rodriguez v. State of Oregon,

, 

 (2019). Applying the standard from
Gutale, the court addressed whether a petitioner’s mental
illness may justify application of the escape clause.
       In Perez-Rodriguez, the petitioner argued that “his
mental illness and intellectual disability prevented him
from knowing that he had a claim for post-conviction relief
     4
       Although this court has recognized a rule of construction that “use of the
same word or phrase throughout the statute demonstrates that the word [or
phrase] has the same meaning throughout the statute,” State v. Lambert, 

, 

 (2009), “such rules of interpretation are mere assumptions that always give way to more direct evidence of legislative intent,” Brown
v. SAIF Corp., 

, 

 (2017) (internal quotation marks
omitted). Consequently, though the text of the escape clause in ORS 138.510(3)
is identical to the escape clause in ORS 138.550(3), the two provisions have, as
noted above, been construed by the Supreme Court to require different analyses.
See Gutale, 

 (differentiating analyses under ORS 138.510(3) and
ORS 138.550(3)).
Cite as 

 (2021)                              441

within the two-year limitations period.” Id. at 491. The petitioner’s petition “attached a declaration from a clinical social
worker, who stated that petitioner has schizoaffective disorder, which may include ‘hallucinations, paranoia, delusions,
and disorganized speech and thinking,’ ” and he “alleged
that those disabilities affected his ability to understand his
circumstances.” Id. at 494.
         The Perez-Rodriguez court noted that the petitioner’s argument raised two questions: “(1) whether a petitioner’s mental illness and intellectual disability may ever justify applying the escape clause and (2) if so, whether the
particular mental illness and intellectual disability that
petitioner alleges are sufficient allegations to establish, for
assessing the state’s motion to dismiss, that petitioner could
not reasonably have brought his claim during the limitations period.” Id. at 497-98.
         Regarding the first question, the court said that
it was “hesitant” to decide “whether a petitioner’s mental
illness and intellectual disability may ever justify applying
the escape clause,” because “[t]he parties’ arguments on that
question are significantly underdeveloped” and “the question is not an easy one.” Id. at 498.
         The court explained that “[t]he escape clause uses
a reasonableness standard”; that reasonableness standards
often “do not consider an actor’s mental illness or intellectual capacity”; and that “part of the reason for not considering an actor’s mental illness or intellectual capacity is [due
to] problems of administrability.” Id. (citing Restatement
(Third) of Torts: Phys & Emot Harm § 11 comment e (2010)).
         The court further explained, however, that “many
statutes of limitations are subject to a discovery rule that
applies a reasonableness standard,” and that, “in applying statutes of limitation, courts frequently consider mental illness or intellectual capacity as part of a statutory or
common-law tolling rule that is separate from the discovery rule’s reasonableness inquiry.” Id. (citing ORS 12.160(3)
(considering whether a “person has a disabling mental condition” at the time a cause of action accrues)). And, the court
observed, “the reasons for not considering an actor’s mental
442                                                        Ingle v. Matteucci

illness or intellectual capacity in one context may not be
applicable here.” Id. at 499.
         Ultimately, the court concluded that it need not
resolve the first question (i.e., whether a petitioner’s mental
illness and intellectual disability may ever justify applying the escape clause): The court reasoned that, “even if a
petitioner’s mental illness and intellectual disability could
justify applying the escape clause, [the] petitioner’s specific
allegations here would not justify applying the escape clause
in this case.” Id. (emphasis in original).5
          In addressing the second question (i.e., whether the
particular mental illness and intellectual disability alleged
by the petitioner brought his petition within the escape
clause), the court concluded that the “petitioner’s allegations
about his mental illness fail to establish that he did not have
the capacity to file his petition within the statute of limitations.” Id. at 500. The court reasoned that “[s]imply having
schizoaffective disorder is, by itself, insufficient,” and that
the petitioner “does not allege, for example, that his mental
illness led to any—let alone, prolonged—periods of psychosis during the limitations period.” Id. (emphasis added).
B.    Application of the Escape Clause in the Instant Case
          In this case, I do not understand petitioner to argue
that his untimely petition satisfies the first prong of the
standard set out in Gutale for applying the escape clause—
i.e., that he could not have accessed the ground for relief
asserted in his petition. Rather, I understand petitioner’s
argument to be that his untimely petition satisfies the second prong of that standard—i.e., that a reasonable person
in his situation would not have thought to investigate the
existence of the grounds for relief asserted in his petition.
More specifically, as explained above, petitioner argues that
his untimely petition falls within the escape clause because
he was unable to raise his claim within the limitation period
due to the circumstances of his mental illness. Consequently,
     5
       Although the court in Perez-Rodriguez declined to answer the first question,
if a “petitioner’s situation,” as referenced in Gutale, 

, necessarily did
not include a petitioner’s mental illness, then presumably the Supreme Court
would have said as much in addressing the first question in Perez-Rodriguez,
rather than saying it was not easy and expressly leaving it for another day.
Cite as 

 (2021)                               443

assessing whether petitioner satisfies the second prong of
the Gutale standard requires answering two questions left
open by Perez-Rodriguez—i.e., (1) Can mental illness ever
justify application of the escape clause, and (2) if so, what
must a petitioner show?
         As to the first question, I recognize—as noted in
Perez-Rodriguez—that it “is not an easy one.” 364 Or at 498.
Yet I think that the answer is yes; under certain circumstances, a petitioner’s mental illness may justify application
of the escape clause. That answer to the first question pertains only to a petitioner’s mental illness; I express no opinion as to what, if any, other aspects of a petitioner’s situation
might (or might not) be relevant to justifying application of
the escape clause.
         As to the second question, for the reasons explained
below, I would conclude that petitioners face a high burden,
requiring more than merely alleging that they have a mental illness; rather, petitioners must show not only the existence of their mental illness but also some additional fact
or facts about how, due to that mental illness, a reasonable
person in the petitioner’s situation would not have thought
to investigate the existence of the asserted ground for relief
during the limitation period.
    1. Can mental illness ever justify application of the
       escape clause?
         As stated above, I would conclude that a petitioner’s
mental illness may, in certain circumstances, justify application of the escape clause.
          At the outset, I briefly observe that a “mental illness is a condition that affects a person’s thinking, feeling,
behavior, or mood,” and one such condition is schizophrenia.
National Alliance on Mental Illness, Mental Health Conditions, https://www.nami.org/About-Mental-Illness/MentalHealth-Conditions (accessed Oct 19, 2021). With respect to
schizophrenia, it “is a serious mental illness that affects
how a person thinks, feels, and behaves,” and “[p]eople with
schizophrenia may seem like they have lost touch with
reality[.]” National Institute of Mental Health, Schizophrenia, https://www.nimh.nih.gov/health/topics/schizophrenia
444                                        Ingle v. Matteucci

(accessed Oct 19, 2021). The cognitive effects of schizophrenia “include problems in attention, concentration, and memory.” Id. Schizophrenia can “interfere with activities like
following conversations, learning new things, or remembering appointments.” Id. Additionally, those suffering from
schizophrenia “typically experience [d]ifficulty processing
information to make decisions; [p]roblems using information immediately after learning it; [and] [t]rouble focusing
or paying attention.” Id. With those observations in mind, I
turn to examining whether mental illness can ever justify
application of the escape clause.
         To reiterate, under ORS 138.510(3), a petition for
post-conviction relief must be filed within two years of the
date of conviction, unless the petition falls within the escape
clause. The escape clause provides that a petitioner may file
an untimely petition by asserting “grounds for relief …
which could not reasonably have been raised” within the two-year limitations period. I observe, as did the court in Bartz,
that that provision “does not explain precisely what kinds of
circumstances fulfill the [escape clause’s] requirement that
an untimely petition assert a ground for relief that ‘could
not reasonably have been raised.’ ” Id. at 358 (quoting ORS
138.510). Nevertheless, as I said above, the court in Gutale
explained that application of the escape clause requires
assessing “[(1)] whether the petitioner reasonably could have
accessed the ground for relief” and “[(2)] whether a reasonable person in the petitioner’s situation would have thought
to investigate the existence of that ground for relief.” 364 Or
at 512 (emphasis added).
         On its face, the second prong of that standard certainly could be read to allow for consideration of a petitioner’s mental illness in assessing whether the petitioner
would have thought to investigate a claim for relief, and,
thus, whether the escape clause would apply. See, e.g.,
Webster’s Third New Int’l Dictionary 2129 (unabridged ed
2002) (defining “situation” to include, among other definitions, “the total set of physical, social, and psychocultural
factors that act upon an individual in orienting and conditioning his behavior” and “relative position or combination
of circumstances at a given moment”).
Cite as 

 (2021)                                 445

         Moreover, in my view, it would be consistent with
the general purpose of the escape clause to conclude that,
in some circumstances, mental illness can be considered
in determining whether a petitioner has justified application of the escape clause. Prior to 1989, a petition for post-conviction relief under ORS 138.510 could “be filed without
limit in time.” ORS 138.510(2) (1987); see also Bartz v. State
of Oregon, 

, 617 n 1, 

, aff’d, 

, 

 (1992) (noting same). The limitation
period set forth in ORS 138.510 was part of an effort by the
1989 legislature “intended to reduce the costs of the state’s
indigent defense programs.” Bartz, 

. But “[t]he
purpose of the escape clause is to ensure [those cost] savings
without injustice.” Fine v. Zenon, 

, 

 (1992) (citing Tape Recording, House Committee on
Judiciary, Civil Subcommittee, SB 284, June 12, 1989, Tape
122, Side A (statement of Ross Shepard)); see also Gutale,

 (Balmer, J., dissenting) (“Strict statutes of
limitation have their advantages, but their price is that they
occasionally produce harsh results and unfairness.”).
         In my view, it would work an injustice to conclude,
as a matter of law, that a petitioner’s mental illness—no
matter how profound and prolonged—can never be considered in connection with application of the escape clause.
Put another way, it would be inconsistent with the ends of
justice—and, therefore, the purpose of the escape clause—
to save money by prohibiting petitioners from filing claims
for post-conviction relief where the circumstances of their
mental illness prevented them from thinking to investigate
the existence of a claim for relief before the two-year limitation period in ORS 138.510(3) had run.
          Furthermore, applying the escape clause in the context of a petitioner’s mental illness is similar to its application
in other contexts. Petitioners have relied on the escape clause
where their untimely claims involve “newly discovered facts”
or “changes in the law.” Verduzco v. State of Oregon, 

, 

 (2015); see also Eklof v. Steward, 

, 

 (2016) (considering whether petition based on newly discovered Brady evidence fell within
escape clause); Chavez v. State of Oregon, 

,

 (2019) (determining that petition based on new
446                                                     Ingle v. Matteucci

law announced in Padilla v. Kentucky, 

, 

, 

 (2010), fell within escape clause).
Allowing application of the escape clause in instances involving a petitioner’s mental illness—at least where, due to that
mental illness, a reasonable person in the petitioner’s situation would not have thought to investigate the existence
of that ground for relief during the limitation period—is no
different: The common feature is that these cases represent
extraordinary circumstances, where a petitioner has only
recently discovered a claim generally barred by the limitation period, and the escape clause functions to allow an
otherwise untimely petition in the interests of justice.
         So, in other words, the escape clause fundamentally
serves as a means of promoting access to justice. In light
of the purpose of the escape clause, I see no principled reason to favor petitions that are untimely due to newly discovered facts or newly announced law over petitions that are
untimely due to the effects of a petitioner’s mental illness.
         I also emphasize that petitioners who meet the standard for application of the escape clause in connection with
mental illness—as articulated in greater detail below—are
a narrow class. Thus, to recognize that, in some circumstances, mental illness can justify application of the escape
clause, does not, as articulated by the court in Gutale, “run
the risk of having the escape clause swallow the statute of
limitations,” 364 Or at 514, and such recognition is consistent with Bartz’s observation that the escape clause is meant
to be “construed narrowly,” 

.6
        It is true, as noted in Perez-Rodriguez, that “[t]he
escape clause uses a reasonableness standard,” that reasonableness standards often “do not consider an actor’s mental

    6
      I note that, in this opinion, I consider only whether, and under what circumstances, mental illness can justify application of the escape clause set forth
in ORS 138.510(3). Should the issue ever come before this court, a different
analysis would need to be undertaken with respect to ORS 138.550(3), which as I
explained above, governs successive petitions for post-conviction relief.
    That the analysis in this opinion applies only to petitions under ORS
138.510(3) (where the subject of the reasonableness inquiry is the petitioner) and
not successive petitions under ORS 138.550(3) (where the subject of the reasonableness inquiry is an attorney representing the petitioner) is another way that,
in my view, the conclusion reached in this opinion is a narrow one.
Cite as 

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illness or intellectual capacity,” and that “part of the reason for not considering an actor’s mental illness or intellectual capacity is [due to] problems of administrability.” 364
Or at 498 (internal quotation marks omitted). But I think
that consideration of a petitioner’s mental illness is unlikely
to present significant problems of administrability with
respect to the escape clause’s reasonableness standard.
         The administrability problems mentioned by the
Supreme Court in Perez-Rodriguez pertain specifically to the
tort standard of liability. 364 Or at 499 (citing Restatement
(Third) of Torts: Phys & Emot Harm § 11 comment e (2010)).
But, as the Perez-Rodriguez court opined, “the reasons for not
considering an actor’s mental illness or intellectual capacity
in one context may not be applicable in” other contexts. 364
Or at 499. Courts in several jurisdictions routinely consider
mental illness in the context of equitable tolling of statutes
of limitation, including in connection with post-conviction
claims. See, e.g., Milam v. Harrington, 

(9th Cir 2020) (noting that “equitable tolling for mental
impairment is available in myriad circumstances,” and
holding that district court erred in refusing to consider
whether federal habeas petitioner’s mental impairment
caused the untimely filing of his petition); see also Bills v.
Clark, 

, 1100 n 3 (9th Cir 2010) (considering whether “a petitioner’s mental condition” constitutes
“an extraordinary circumstance justifying equitable tolling
of the untimely filing of a habeas petition,” and articulating a standard requiring courts “to evaluate how a petitioner’s mental impairment bore on his ability to file” a petition for post-conviction relief); Barrett v. Principi, 

 (Fed Cir 2004) (observing “the widespread support for
equitable tolling based on mental illness that has developed
over the last fifteen years,” noting that “several circuits
have allowed equitable tolling based on mental illness,”
and collecting cases). Courts also consider mental disability in apportioning fault in civil cases. See, e.g., Restatement
(Third) of Torts: Phys & Emot Harm § 11 comment e (2010)
(noting mental disability can be considered during the “process of apportioning percentages of responsibility between
the plaintiff and the defendant”). And within the criminal law context, courts frequently grapple with concerns
448                                         Ingle v. Matteucci

regarding mental illness. See, e.g., id. § 11 comment e (noting litigation of the insanity defense in the criminal-justice
system).
          In the end, however, whether problems of administrability will result from a reasonableness standard that
contemplates a petitioner’s mental health circumstances is
a matter of time and experience, not of prognostication. And
if, in time, experience demonstrates that such problems do,
in fact, arise, I am confident that the legislature would be
more than capable of determining as much and crafting an
appropriate legislative solution.
         In sum, based on the foregoing considerations and
understanding of the evaluative framework advanced in
Gutale and Perez-Rodriguez, I would conclude that, depending on the particular factual circumstances involved, application of the escape clause may be justified in cases where,
due to mental illness, a petitioner would not have thought to
investigate the existence of a claim for post-conviction relief
within the two-year limitation period.
      2. What must petitioners show to justify applying the
         escape clause based on mental illness?
        Having concluded that there are some circumstances in which mental illness may justify application of
the escape clause, I turn next to determining what those
circumstances are, guided in particular by the Supreme
Court’s discussion in Gutale and Perez-Rodriguez.
         As noted above, the court in Gutale explained that
the reasonableness standard in ORS 138.510(3)’s escape
clause requires assessing “[(1)] whether the petitioner
reasonably could have accessed the ground for relief and
[(2)] whether a reasonable person in the petitioner’s situation would have thought to investigate the existence of that
ground for relief,” and that that standard “call[s] for a judgment about what is reasonable under the circumstances”
of an unrepresented petitioner. Gutale, 

(emphases added).
         As stated above, the court in Perez-Rodriguez concluded that the petitioner’s allegations regarding his mental illness did not suffice to justify application of the escape
Cite as 

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clause, in part, because “[s]imply having schizoaffective disorder is, by itself, insufficient,” and that the petitioner “does
not allege, for example, that his mental illness led to any—
let alone, prolonged—periods of psychosis during the limitations period.” Perez-Rodriguez, 

 (emphasis
added).
         In light of the Supreme Court’s discussion of the
applicable standard in Gutale and Perez-Rodriguez, I understand that a petitioner’s mental illness is, by itself, not
enough to justify application of the escape clause; rather,
as implied in the court’s discussion in Perez-Rodriguez, in
regard to the second prong of the Gutale standard, a petitioner must allege not only that they have a mental illness
but also some additional fact or facts about how, due to that
mental illness, a reasonable person in the petitioner’s situation would not have thought to investigate the existence of a
ground for relief.
         Accordingly, application of the escape clause requires
this court to examine the particular factual circumstances
in each case involving an untimely petition and make “a
judgment about what is ‘reasonable’ under th[ose] circumstances.” Gutale, 

 (quoting Verduzco, 

). In assessing those circumstances, I further understand that, among other factors, the duration and intensity
of a petitioner’s mental illness are important factors for the
court to consider in determining whether a petitioner would
have thought to investigate a claim for relief and, thus,
whether the escape clause would apply.7
     3. Petitioner’s petition falls within the escape clause.
        As explained above, petitioner contends that he did
not investigate and raise his claim within the limitations
period due to circumstances related to his mental illness.
    7
      I observe that the definition of the word “circumstances” includes, as relevant here, “a condition, fact, or event accompanying, conditioning, or determining
another,” and “the total complex of essential attributes and attendant adjuncts
of a fact or action : the sum of essential and environmental characteristics
: arrangement, situation, composition, or nature of an event or thing.” Webster’s
Third New Int’l Dictionary 410 (unabridged ed 2002). I understand that facts
alleged in a petition for post-conviction relief regarding a petitioner’s mental illness would come within that definition of “circumstance.”
450                                        Ingle v. Matteucci

Thus, resolution of this case turns on whether—given the
circumstances of his mental illness—petitioner’s untimely
filing was reasonable so as to justify application of the
escape clause.
        Here—assuming the truth of petitioner’s allegations regarding his mental illness and giving petitioner
the benefit of all reasonable inferences that may be drawn
therefrom—I believe those allegations are sufficient to show
that petitioner’s petition falls within the escape clause of
ORS 138.510(3).
          For one, given the circumstances of petitioner’s
mental illness, I do not think that someone in those circumstances would have thought to—much less, been able to—
investigate the existence of grounds for a post-conviction
relief claim. Assuming the truth of petitioner’s allegations—
as is required at this stage of the proceedings—his mental
health circumstances substantially impaired his ability to
concentrate on a single subject; to logically reason; to read
and comprehend legal documents; to understand the legal
proceedings that resulted in his convictions; to understand
the legal remedies available to challenge his convictions;
and to identify, allege, and support with evidence a post-conviction claim for relief. In light of those impairments,
it is difficult to understand how petitioner could have
thought to investigate whether he had grounds for raising a
claim.
         Moreover—in contrast with the Perez-Rodriguez
petitioner’s simple allegation that he had a mental illness—
petitioner in this case did not merely allege that he has a
mental illness. Instead, petitioner alleged that he has been
diagnosed with a mental illness, viz., schizophrenia; that his
mental illness resulted in a “substantially impaired mental
condition”; that because of his mental illness, he could not
adequately concentrate, reason, read, or comprehend his
legal situation; and that his substantially impaired condition persisted for years, from the time of his conviction until
he filed his petition for relief.
         In addition to those allegations, a further indication
of the duration and intensity of petitioner’s impaired mental
condition may be drawn by inference from the fact that he
Cite as 

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had been found guilty except for insanity, placed under the
jurisdiction of the PSRB, and committed to OSH during the
limitation period and beyond. Cf. Perez-Rodriguez, 

 (citing Grant v. McDonnell Douglas Corp., 

 (9th Cir 1998) (holding that equitable tolling based on
mental condition may be appropriate “in exceptional circumstances, such as institutionalization or adjudged mental
incompetence”)).
          It is also worth noting that petitioner’s allegations
regarding his mental illness present an exceptional case in
contrast to the Bartz petitioner’s “unexceptional” allegations
(i.e., that he was unaware of the existing law), which the
court said did not justify application of the escape clause.
Relatedly, unlike in Bartz, there is little reason to think
that applying the escape clause in this case runs the risk
of allowing the exception to swallow the rule; petitioner
belongs to the narrow class of first-time petitioners whose
circumstances include mental illness of such duration and
intensity as to prevent them from thinking to investigate
their post-conviction claims until after the limitation period
had run.
         Thus, taken together, I think that petitioner’s allegations about the circumstances of his mental illness are
sufficient to bring his petition within the escape clause.
         The state contends, however, that “the [post-conviction] court was not required to accept those allegations
as true,” because “those allegations are directly inconsistent
with” two facts: (1) that “during the limitations period, petitioner absconded from OSH for ‘several months,’ specifically
because he was off medication and felt as though he was
‘doing fine’ without it”; and (2) that during a hearing before
petitioner’s original criminal trial, he “repeatedly confirmed
his competency to aid and assist and specifically indicated
that his medication helped his mental capacity rather than
diminished it.” Consequently, the state suggests, the post-conviction court could have rejected the allegations in petitioner’s petition as “sham,” or “obviously false.”
        I am not persuaded by the state’s contention. The
two facts raised by the state are not necessarily inconsistent
with petitioner’s allegations. As petitioner has observed, “the
452                                        Ingle v. Matteucci

fact that petitioner absconded from the hospital because he
believed he was ‘fine’ potentially supports, not diminishes,
his allegation that he was experiencing significant mental
illness at the time, especially in light of evidence that he
was immediately re-medicated upon his capture and return
to the hospital.” And the fact that petitioner confirmed his
competency before his criminal trial is not inconsistent with
the allegation that at a later time—i.e., during the subsequent two-year limitation period—the circumstances of his
mental illness prevented him from investigating and timely
filing his petition.
         There is another, perhaps more important, reason
that I am not persuaded by the state’s contention: In ruling
on the state’s motion to dismiss under Rule 21 A(9), “the
trial court must assume the truth of all well-pleaded facts
alleged in the [petition]” and give the petitioner “the benefit
of all favorable inferences that may be drawn from those
facts.” Espinoza v. Evergreen Helicopters, Inc., 

, 

 (2016) (internal quotation marks omitted).
The state correctly observes that, pursuant to a Rule 21 E
motion, a court may strike “sham” allegations at the pleading stage. But the record does not show that the state made
any such motion or that the court struck any allegations
from petitioner’s petition.
         In any event, I am not persuaded that the two facts
raised by the state have the effect of rendering petitioner’s
allegations “sham” or “obviously false,” and I assume—as we
are required to do under our standard of review—that those
allegations are true.
         In sum, given the allegations in petitioner’s petition about the circumstances of his mental illness—i.e., the
extent and duration of his mental illness, and its impact
on his investigation and timely filing of his claim for post-conviction relief—I think that those allegations are sufficient to show that a person in petitioner’s situation would
not have thought to investigate the existence of the grounds
for relief asserted in petitioner’s petition. For that reason,
I would conclude that petitioner’s petition falls within the
escape clause of ORS 138.510(3). In so concluding, I emphasize that that conclusion regarding the applicability of the
Cite as 

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escape clause is limited to circumstances involving a petitioner’s mental illness; I express no opinion as to whether
any other health conditions might also justify application of
the escape clause.
C. The State’s Contention Regarding Fisher v. Belleque
         In seeking a different result, the state argues that,
under this court’s decision in Fisher v. Belleque, 

, 

, rev den, 

 (2011), petitioner’s allegations about mental illness fail to bring his post-conviction
petition within ORS 138.510(3)’s escape clause. I disagree.
          In Fisher, the petitioner brought an untimely petition for post-conviction relief, arguing that his petition fell
within ORS 138.510(3)’s escape clause because “he suffered
from clinical depression, dysthymic disorder, and post-traumatic stress disorder” during the limitation period.
Id. at 408. Importantly, the petitioner did not contend that
“the grounds for relief alleged in [his] petition [were] based
on information that did not exist or that was not reasonably available” to him within the two-year limitation period;
rather, the petitioner’s “only contention [was] that his mental illness rendered him incapable of appreciating the significance of the information [underlying his claim] that was
plainly available during that time.” Id. at 410-11 (emphasis added). We rejected that contention, explaining that
“the applicability of the escape clause turns on whether the
information existed or was reasonably available to the petitioner,” and that “the reasonableness of a petitioner’s failure
to act on information that is available is simply not enough
to trigger the escape clause of ORS 138.510(3).” Id. at 410-11
(emphasis in original; citation and internal quotation marks
omitted).
         As noted above, I disagree with the state’s argument and the majority that Fisher is determinative in this
case. For one, as the Fisher court opined in rejecting the
petitioner’s contention, “the applicability of the escape clause
turns on whether the information existed or was reasonably
available to the petitioner.” Id. at 410 (emphasis in original).
But the petitioner in Fisher never argued that the relevant
information was not “reasonably available” to him. Id. By
contrast, in this case, that is precisely the basis for applying
454                                                      Ingle v. Matteucci

the escape clause that petitioner has raised in his petition:
“Based on … his substantially impaired mental condition,
the information required to timely raise the grounds for
relief alleged herein was not reasonably available to petitioner during the two year [limitation] period.” Thus, the
argument petitioner makes in this case is a different argument than the one that the petitioner raised and the court
rejected in Fisher.
         Moreover—and, I think, most importantly—since
this court decided Fisher, the Supreme Court has clarified
that whether grounds for relief were “reasonably available”
depends, in part, on a petitioner’s specific circumstances
and efforts to investigate information relevant to a post-conviction claim. In Fisher, we rejected the petitioner’s contention that his untimely petition fell within the escape
clause by explicitly relying on Bartz, 

. Fisher, 

. We said that “Bartz makes it clear that
the applicability of the escape clause turns on whether the
information existed or was reasonably available to the petitioner, and not on whether the petitioner’s failure to seek
the information was reasonable.” Fisher, 

(citation and internal quotation marks omitted).
          Yet, since we decided Fisher, the Supreme Court has
indicated that “we … cannot assume that Bartz provides
the final answer on the meaning of ORS 138.510(3),” and
clarified that “whether a claim reasonably could have been
raised earlier will vary with the facts and circumstances of
each claim.” Verduzco, 

; see also Eklof v.
Steward, 

, 

 (2016) (explaining
that whether grounds for relief reasonably could have been
raised “can depend on ‘the facts and circumstances of each
claim’ ” (quoting Verduzco, 

)). And, even more
recently, the Supreme Court in Gutale further clarified that
the standard for determining whether grounds for relief
were “reasonably available” requires assessing “whether a
reasonable person in the petitioner’s situation would have
thought to investigate the existence of that ground for relief.”
364 Or at 512 (emphasis added).8 That standard set forth in
    8
      In Hernandez-Zurita v. State of Oregon, 

, 

, vac’d
and remanded for recons, 

 (2019), this court affirmed the dismissal of
a petitioner’s untimely petition, holding that the petition did not fall within the
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 (2021)                                                455

Gutale requires this court to consider petitioner’s situation,
which in this case includes the circumstances of his mental
illness throughout the limitation period; to disregard those
circumstances would be to disregard that standard.
         Thus, the state’s argument invites this court to
apply the holding in Fisher in a manner that I think is
inconsistent with the Supreme Court’s recent decisions clarifying the standard for assessing whether grounds for relief
were “reasonably available.” I would decline to do so.
                           IV. CONCLUSION
        For the reasons discussed above, I would conclude
that the allegations in petitioner’s petition are sufficient to
bring his petition within the escape clause of ORS 138.510(3),
and that the trial court erred in granting the state’s motion
to dismiss petitioner’s petition, and that we should reverse
and remand this case. Therefore, I respectfully dissent.




escape clause of ORS 138.510(3). In that case, the petitioner argued, among other
points, that the escape clause required “a circumstances-specific analysis.” 290
Or App at 630. This court rejected that argument, citing Fisher for the proposition that the “reasonableness of a petitioner’s failure to act on information that
is available” cannot trigger the escape clause, and describing Fisher as a “considered” decision that was “based on engaged analysis.” Id. at 628, 631. However,
the Supreme Court allowed review of this court’s decision in Hernandez-Zurita,
vacated that decision, and “remanded to the Court of Appeals for reconsideration
in light of Gutale v. State of Oregon, 

, 

 (2019), and Perez-Rodriguez v. State of Oregon, 

, 

 (2019).” 365 Or at 194.
     Here, because Fisher is distinguishable from the instant case, it is unnecessary to determine how the Supreme Court’s decision to vacate and remand in
Hernandez-Zurita in light of Gutale and Perez-Rodriguez bears on the continued
viability of Fisher. Nevertheless, I agree with the majority that some aspects of
the analysis in Fisher are “no longer viable” in light of the Supreme Court’s opinion in Gutale. See 315 Or App at 416.