423 P.3d 715
Or.2018Background
- Petitioner pleaded guilty to burglary and assault, received probation, later had probation revoked and a 72‑month sentence imposed; he then filed post‑conviction petitions alleging ineffective assistance of counsel.
- In Bogle v. State, petitioner had court‑appointed post‑conviction counsel who included but would not certify certain pro se claims; petitioner filed multiple pro se motions invoking Church v. Gladden to have the court order counsel to raise additional claims or replace counsel.
- The post‑conviction court held hearings, struck many pro se filings as improper hybrid representation, denied substitution/instruction of counsel, and denied relief on the merits; the Court of Appeals affirmed but held that raising Church motions preserved claims from claim‑preclusion under ORS 138.550(3).
- While that matter was pending, petitioner filed a second post‑conviction petition (Bogle v. Nooth); the court dismissed it under ORCP 21 A(3) (another action pending) and alternatively under ORS 138.550(3) (successive petitions barred); the Court of Appeals affirmed dismissal under ORCP 21 A(3).
- The Supreme Court consolidated review to decide (1) the scope and required court response to a Church motion (asking the court to replace or instruct appointed counsel) and (2) whether filing a Church motion preserves claims for a later post‑conviction case despite ORS 138.550(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What must a post‑conviction court do in response to a Church motion (request to replace or instruct counsel)? | Bogle: Court must assess and determine whether each pro se claim is "legitimate" (has factual and legal basis) and order counsel to raise them if so. | State: Court should address Church motions but only to the extent necessary to decide if counsel is failing to raise claims in a way that justifies intervention. | Court: Church motions are intended to show counsel failed to exercise reasonable professional skill and judgment in declining to raise a ground; court must consider the motion and, if petitioner meets that burden, may replace or instruct counsel. |
| Does Church authorize hybrid representation or routine pro se filings by a represented petitioner? | Bogle: Church permits represented petitioner to file pro se motions asserting claims counsel won’t raise. | State: Church does not create a hybrid‑representation right; pro se filings are limited to notifying the court of counsel’s refusal to raise particular grounds. | Court: Church does not authorize hybrid representation; pro se filings are limited to seeking replacement or instruction of counsel for unraised grounds. |
| What showing is required to obtain substitution or instruction of counsel under Church? | Bogle: Court should evaluate whether the claimed grounds are supported by fact and law. | State: Petitioner must show a legitimate complaint—specifically that counsel failed to exercise reasonable professional skill and judgment. | Court: Petitioner must prove counsel failed to exercise reasonable professional skill and judgment in not raising the ground; strategic choices by counsel do not alone justify substitution/instruction. |
| Does filing a Church motion preserve unraised claims for a subsequent post‑conviction petition under ORS 138.550(3)? | Bogle/Ct. of Appeals: Filing Church motions preserves claims from waiver by ORS 138.550(3). | State: Allowing preservation would undermine ORS 138.550(3) and enable serial litigation and de facto hybrid representation. | Court: No—Church requires petitioners to seek relief (replace/instruct counsel) in the current case; filing Church motions does not exempt claims from ORS 138.550(3). |
Key Cases Cited
- Church v. Gladden, 244 Or. 308 (1966) (petitioner must inform court if counsel refuses to raise grounds so claims are not later barred)
- Johnson v. Premo, 355 Or. 866 (2014) (Church does not authorize hybrid representation; limits Church to notifying court about unraised grounds)
- Smith v. State, 339 Or. 515 (appointment and substitution issues for counsel; court must consider motions to replace counsel)
- Trujillo v. Maass, 312 Or. 431 (standard that counsel must exercise reasonable professional skill and judgment)
- Delaney v. Gladden, 232 Or. 306 (res judicata and limitations on repetitive post‑conviction litigation)
- Montez v. Czerniak, 355 Or. 1 (standards for proving denial of right to counsel in post‑conviction proceedings)