Opinion
A170136
01-06-2021
Kenneth Eugene INMAN, Petitioner-Appellant, v. Troy BOWSER, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
Lindsey Burrows and O'Connor Weber LLC filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Lindsey Burrows and O'Connor Weber LLC filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
PER CURIAM Petitioner appeals a judgment denying his petition for post-conviction relief. He raises two assignments of error, the first of which we reject without further discussion. In his second assignment of error, he contends that the post-conviction court applied the wrong legal standard in rejecting his motion under Church v. Gladden , 244 Or. 308, 311, 417 P.2d 993 (1966). Specifically, petitioner contends that the post-conviction court erred by rejecting the motion as untimely, and, further, by not applying the standard set forth in Bogle v. State of Oregon , 363 Or. 455, 423 P.3d 715 (2018), to determine whether petitioner was entitled to relief. The superintendent responds that the court permissibly denied the motion as untimely. The superintendent alternatively argues that the record is such that the post-conviction court could conclude, under the standard announced in Bogle , that petitioner was not entitled to relief.
We agree with petitioner. As for timeliness, post-conviction courts may set deadlines for Church motions and enforce those deadlines when set. Bogle , 363 Or. at 475, 423 P.3d 715 ; Stokes v. Cain , 306 Or. App. 473, 479, 475 P.3d 110 (2020). But here the court never entered a scheduling order or otherwise set a deadline for filing a Church motion. Absent such a deadline, there is no basis to conclude that a Church motion is untimely, at least where, as here, the motion is filed well before the start of the post-conviction trial and the record contains no affirmative evidence about the attorney-client relationship or petitioner's individual circumstances that would suggest that petitioner had been dilatory in filing the motion.
As for the Bogle standard, it required the post-conviction court to assess whether, in failing to include in the amended petition the additional claims that petitioner wished to assert, "counsel has failed to exercise reasonable professional skill and judgment." 363 Or. at 473, 423 P.3d 715. Bogle further required the court to offer petitioner procedural alternatives, depending on its ruling. Id . at 474, 423 P.3d 715. The record reflects that the court did not apply the Bogle standard in denying petitioner's motion and, further, did not offer petitioner the procedural options required under Bogle . We therefore reverse and remand for reconsideration of petitioner's Church motion under the Bogle standard, as we have done in similarly situated cases. See, e.g. , Vasilash v. Cain , 300 Or. App. 542, 559-60, 454 P.3d 818 (2019), rev. den. , 366 Or. 257, 458 P.3d 1130 (2020).
The hearing on petitioner's motion was held not too long after the Supreme Court's decision in Bogle . The record reflects that the parties and the court were aware of the "recent case," but were uncertain of how it applied.
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Reversed in part and remanded for further proceedings consistent with this opinion; otherwise affirmed.