359 P.3d 487
Or. Ct. App.2015Background
- Petitioner fell from a tree, hit his head, drank alcohol, then drove and caused a crash that killed a passenger; his BAC was .273. He was convicted on multiple counts and sentenced to 19 years plus supervision.
- On post-conviction review petitioner alleged ineffective assistance of trial counsel, including (Claim 3) failure to present mitigating evidence at sentencing and (Claim 4) failure to call an expert about head trauma.
- Defendant moved to dismiss the petition under ORS 138.580 for failure to attach affidavits, records, or other documentary support.
- Petitioner submitted an affidavit from Lewis (a nonexpert eyewitness who said petitioner was affected by the head injury) and expressly argued it supported Claim 3; he conceded he had no documentary evidence for Claim 4 and asked the court to proceed with Claims 1–3 only.
- At the hearing petitioner reiterated he had no evidence for Claim 4; the post-conviction court dismissed Claim 4 for failure to comply with ORS 138.580. Petitioner appealed only the dismissal of Claim 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner preserved on appeal the argument that ORS 138.580 does not require attaching supporting evidence when none exists | Schultz argues ORS 138.580 does not mandate attached evidence if none exists (or alternatively that Lewis affidavit supported Claim 4) | State argued ORS 138.580 requires attachments and petitioner failed to attach supporting evidence for Claim 4 | Not preserved: petitioner never advanced that argument below and conceded lack of evidence for Claim 4; appellate review denied |
| Whether the Lewis affidavit supported Claim 4 (expert-witness claim) | Schultz contends Lewis affidavit (eyewitness, nonexpert) also supports the claim that counsel should have called an expert about head trauma | State argued Lewis affidavit did not satisfy ORS 138.580 for Claim 4 and was offered only for Claim 3 | Court held no plain error: affidavit was offered for Claim 3, petitioner conceded no evidence for Claim 4, and Lewis was a nonexpert, so affidavit did not plainly support Claim 4 |
| Whether dismissal under ORS 138.580 was legal error warranting plain-error review | Schultz asked this Court to correct the dismissal as plain error because the affidavit existed | State maintained rule is mandatory and petitioner failed to comply below, so no error to correct | Plain-error not met: legal point not ‘‘obvious and not reasonably in dispute’’ and record insufficient to show the affidavit supported Claim 4 |
| Whether the post-conviction court abused discretion in dismissing Claim 4 without permitting further investigation or amendment | Schultz implied he was investigating Claim 4 and sought to proceed despite lack of documentary evidence | State relied on statutory requirement for attachments at filing to support claims | Court affirmed dismissal; petitioner offered no developed record or argument below to invoke relief or amendment |
Key Cases Cited
- State v. Wyatt, 331 Or 335, 15 P.3d 22 (preservation requirement and need to identify alleged error with clarity)
- State v. Hitz, 307 Or 183, 766 P.2d 373 (distinguishing raising an issue, identifying sources, and making particular arguments for preservation)
- State v. Brown, 310 Or 347, 800 P.2d 259 (plain-error three-part test)
- Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P.2d 956 (discretionary correction even when plain error is found)
- State v. Schultz, 230 Or App 431, 215 P.3d 128 (prior appeal of petitioner’s convictions)