Phillips v. Premo, 381 P.3d 986

Background

Petitioner (convicted of assault/kidnapping/firearm offenses) sought post-conviction relief (PCR) alleging trial counsel failed to call several witnesses and otherwise provide effective representation. PCR counsel Cowan was appointed.
On the day of the PCR trial petitioner, appearing by video, pro se moved for a continuance and told the court Cowan had been nonresponsive and had failed to provide suitable representation; the court repeatedly denied the continuance and curtailed petitioner’s attempts to make a fuller record.
At the PCR hearing Cowan presented a trial memorandum and some documentary evidence and called only the petitioner as a witness; petitioner repeatedly told the court that Cowan had not obtained affidavits or witnesses he requested, and many of those statements were struck as nonresponsive.
The PCR court denied relief, finding petitioner failed to present necessary testimonial evidence at the PCR trial and that Cowan adequately presented petitioner’s contentions; petitioner filed post-trial pro se motions seeking substitution of counsel or directions to counsel.
On appeal the majority held the PCR court abused its discretion by denying the day-of-trial continuance without allowing petitioner to make a record about the basis for the continuance and also concluded the court should have inquired further into petitioner’s complaints that PCR counsel abandoned claims.
A dissent argued (1) petitioner improperly acted pro se while represented, (2) the motion was untimely under UTCR 6.030, (3) the court reasonably denied continuance given the lengthy pendency and readiness for trial, and (4) petitioner’s complaints reflected disagreements about evidence/strategy, not a Church-type omission or abandonment warranting substitution of counsel.

Issues

Issue	Plaintiff's Argument (Phillips)	Defendant's Argument (State/Court below)	Held
Whether denying petitioner’s day-of-trial motion for continuance was an abuse of discretion	Court improperly denied continuance and curtailed petitioner’s ability to explain basis (counsel unresponsive/conflict/abandonment); needed opportunity to make record	Motion untimely, petitioner was represented (should not make pro se motions), case long-pending and court ready for trial	Reversed: court abused discretion by denying continuance without permitting petitioner to make a sufficient record about reasons for continuance
Whether petitioner’s in-court complaints required the court to instruct counsel or substitute counsel (Church claim)	Complaints indicated Cowan abandoned many PCR claims (failed to obtain witnesses/affidavits); court should have inquired and, if warranted, instructed or replaced counsel	Complaints were about evidence/strategy; Court had detailed trial memo, exhibits, and prior-transcript testimony; no showing of failure to plead claims	Majority: court could not summarily dismiss complaints of abandonment and should have inquired; dissent: complaints reflected strategy and no abuse of discretion in denying substitution
Whether petitioner was precluded from making pro se motions while represented	Petitioner needed to personally inform court if PCR counsel failed to raise claims (per Church/ORS) and so could speak up	Represented parties ordinarily must appear through counsel; hybrid representation not permitted; pro se procedural motions were untimely and improper	Majority: petitioner may be allowed to explain counsel-related grounds for continuance; dissent: pro se procedural motion was improper and untimely under rules
Remedy required where court summarily denied continuance and failed to inquire into counsel-abandonment allegations	New trial/remand to allow development of record and proper exercise of discretion	Court’s post-trial findings and written record suffice; denial within permissible discretion	Majority: reverse and remand for new trial and further inquiry; dissent: would affirm judgment as within discretion

Key Cases Cited

State v. Ferraro, 264 Or App 271 (2014) (standard for reviewing denial of continuance)
State v. Mayfield, 302 Or 631 (1986) (appellate review requires record showing exercise of discretion)
State v. Romero, 236 Or App 640 (2010) (failure to make/use record can be error)
State v. Ringler, 264 Or App 551 (2014) (day-of-trial continuance depends on circumstances)
State v. Hickey, 79 Or App 200 (1986) (denial of day-of-trial continuance reversed where unforeseen events justified delay)
Combs v. Baldwin, 161 Or App 270 (1999) (conflict of interest can require hearing and substitute counsel)
Elkins v. Thompson, 174 Or App 307 (2001) (substitution/directions not required where petitioner did not allege conflict or omitted claim)
Church v. Gladden, 244 Or 308 (1966) (petitioner must inform court at first opportunity if counsel fails to assert ground for relief to avoid waiver)
Johnson v. Premo, 355 Or 866 (2014) (represented parties ordinarily must proceed through counsel; Church limited to omitted claims under ORS 138.550(3))
State v. Harper, 81 Or App 422 (1986) (reversal where record did not show trial court considered reasonableness of continuance request)
State v. Langley, 314 Or 247 (1992) (loss of confidence or disagreement over strategy is not ground for substitution of counsel)
Carias v. State of Oregon, 148 Or App 540 (1997) (to show prejudice from failure to call witness, must show what witness would have testified and availability)
Strickland v. Washington, 466 U.S. 668 (1984) (counsel ineffectiveness standard)