385 P.3d 1239
Or. Ct. App.2016Background
- Petitioner was convicted of unlawful delivery of methamphetamine; trial court entered judgment on the conviction on December 11, 2011 and sentenced him to probation.
- The trial court later revoked petitioner’s probation and entered judgment on the revocation on March 1, 2012, sentencing him to 62 months’ incarceration.
- Petitioner filed a pro se post-conviction relief petition more than two years after the conviction judgment but less than two years after the probation-revocation judgment; counsel later filed an amended petition raising nine constitutional claims.
- All nine claims alleged constitutional error in the proceedings leading to the conviction; none challenged the probation-revocation proceedings.
- The Superintendent moved to dismiss under ORCP 21 A(9) as untimely under the two-year limit in ORS 138.510(3); the post-conviction court granted the motion and dismissed.
- On appeal, petitioner argued the limitations period should run from the probation-revocation judgment (which would make the petition timely); the Court of Appeals affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 138.510(3)(a)’s two-year limitations period runs from the original conviction judgment or is retriggered by a subsequent probation-revocation judgment | Lagesen (petitioner) argued the limitations period should run from the probation-revocation judgment (or be retriggered by it), making the petition timely | Superintendent argued the limitations period runs from the judgment on the conviction under ORS 138.510(3)(a); petition was filed after that two-year window and contains no facts excusing untimeliness | Court held the limitations period began on entry of the judgment on the conviction (Dec. 11, 2011); petition filed after that two-year period was untimely and dismissal affirmed |
Key Cases Cited
- Windorf v. Malco, 276 Or. App. 528 (discusses ORCP 21 A(9) timeliness review standard)
- Kelly v. Lessner, 224 Or. App. 31 (pleading-review rules: assume truth of petition allegations and draw favorable inferences for nonmoving party)
- Hayward v. Premo, 281 Or. App. 113 (when petition is filed outside limitation period, petitioner must allege facts showing grounds could not reasonably have been raised earlier)
- State v. Gaines, 346 Or. 160 (statutory construction principles; ascertain legislative intent from text and context)
- Young v. Hill, 347 Or. 165 (Oregon Rules of Civil Procedure generally govern post-conviction proceedings)
- Leahy v. Hill, 219 Or. App. 592 (probation-revocation related precedent cited by petitioner)
- Haney v. Schiedler, 202 Or. App. 51 (probation-revocation related precedent cited by petitioner)
- Fergelic v. Cupp, 53 Or. App. 190 (probation-revocation related precedent cited by petitioner)