Dillard v. Premo, S064028

Dillard was convicted (pro se at trial) of sexual offenses; direct appeal failed; he later filed a timely pro se post‑conviction petition alleging Brady/prosecutorial misconduct, trial errors, ineffective appellate counsel, and actual innocence.
The post‑conviction court (petitioner had counsel at that stage) granted the State’s ORCP 21 A(8) motion and dismissed the petition without holding a hearing, but the judgment erroneously stated the dismissal was “with prejudice.”
ORS 138.525(2) defines a “meritless petition” as one that, when liberally construed, fails to state a post‑conviction claim; subsection (3) provides that a judgment dismissing a meritless petition is not appealable; subsection (4) requires dismissal to be without prejudice if there was no hearing and no counsel.
The Court of Appeals dismissed Dillard’s appeal as barred by ORS 138.525(3). The State conceded the trial court’s “with prejudice” designation was error but argued the appeal was jurisdictionally barred.
The Oregon Supreme Court reversed the Court of Appeals, holding that ORS 138.525(3) does not preclude appellate correction of a post‑conviction court’s erroneous designation of a dismissal as “with prejudice” when the dismissal occurred without counsel or a hearing.

Issue	Plaintiff's Argument (Dillard)	Defendant's Argument (Premo/State)	Held
Whether ORS 138.525(3) bars appellate review of a judgment dismissing a meritless petition that was entered without a hearing or appointed counsel but labeled “with prejudice.”	Subsection (3) should not bar appeal of an erroneous “with prejudice” judgment entered without counsel/hearing; §(4) shows legislature intended such dismissals to be without prejudice and refilable.	Subsection (3) is unambiguous: any judgment dismissing a meritless petition is not appealable, regardless of whether the post‑conviction court complied with §(4).	The court held §(3) does not bar appellate correction when a court dismisses without counsel or a hearing but labels dismissal “with prejudice”; reverse and remand.

Ware v. Hall, 342 Or 444 (2007) (interpreted ORS 138.525 to limit summary dismissals and explained dismissals without a hearing must be without prejudice)
Young v. Hill, 347 Or 165 (2009) (characterized ORS 138.525 as unambiguous that petitions failing to state a claim are meritless and dismissals of such petitions are not appealable)
State v. McAnulty, 356 Or 432 (2014) (used for statutory construction context and prior interpretations)
State v. Gaines, 346 Or 160 (2009) (described text, context, and legislative history as tools for discerning legislative intent)
State v. Montgomery, 294 Or 417 (1983) (distinguished appealability from reviewability; appealability is a statutory threshold)