Lead Opinion
Pеtitioner appeals the judgment denying his petition for post-conviction relief (PCR), assigning error to the PCR court’s denial of his motion for a continuance. As explained below, we conclude that the PCR court abused its discretion by denying the motion without affording petitioner an opportunity to make a sufficient record regarding the basis for the motion. Accordingly, we reverse and remand.
Petitioner filed a PCR petition, and an attorney, Cowan, was appointed to represent him in the PCR proceedings. On the day of the PCR trial, petitioner appeared by video from the correctional facility where he was housed, and his attorney appeared in person. When petitioner’s attorney called petitioner as a witness, petitioner moved for a continuance:
“[PETITIONER]: Your Honor, before we begin I’d like to address the Court. I am moving at this time for a continuance of this proceeding.
“THE COURT: That’s not allowed, Mr. Phillips. I’m denying your motion as not timely. Go ahead, Mr. Cowan.
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“ [PETITIONER]: I can’t state something for the record?
“THE COURT: *** Mr. Phillips you’re asking that this be continued, and the answer to that [is] it’s not going to be continued. So, go ahead please.
“ [PETITIONER]: I mean—
“THE COURT: Oh.
“[PETITIONER]: Mr. — well, I’d like to put on the record that Mr. Cowan has been non-responsive to my request to assist me and has completely failed to provide suitable counsel as required for my post conviction proceedings.
“THE COURT: All right.
“[PETITIONER]: Mr. Cowan—
“THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented you. I am not going to delay these proceedings based on your belief about that. And if you have a basis for that contention that can be taken up some other time and place, but not now.
“ [PETITIONER]: Well, I’d like to state these—
“THE COURT: Mr. Cowan, would you please begin.
“[PETITIONER]: I’d like to state these issues on the record, Your Honor.
“THE COURT: I don’t want to—
“[PETITIONER]: This is the only time in a post conviction proceedings.
“THE COURT: Well, you have said that you feel he has been unresponsive and not represented you adequately. That’s about as broad as it possibly could be Mr. Phillips.
[It] covers about everything—
“[PETITIONER]: Well, there’s — there’s—
“THE COURT: —that you might later claim. So—
“[PETITIONER]: There’s witnesses—
“THE COURT: —I’m going to ask you sir to not discuss this further. If my failure to listen to you further is some error on my part that can be taken up. Mr. Cowan please go ahead.”
To recap, petitioner moved for a continuance, and the PCR court summarily denied the motion as untimely and directed petitioner’s attorney to proceed. Petitioner then asked if he could “state something for the record,” and the court responded that the case would not be continued and again directed petitioner’s attorney to proceed. Petitioner informed the court that his attorney had been nonrespon-sive and had failed to provide suitable counsel, and the court responded that it would not delay the proceedings and that if petitioner had a basis for his complaints about his attorney that could be “taken up some other time and place [.]” Petitioner said that he wanted to make a record, and the court responded by directing petitioner’s attorney to proceed for the third time. When petitioner repeated that he wanted to make a record, the court said that petitioner’s general complaints about his attorney would “cover about everything” petitioner might later clаim. When petitioner spoke again, the court asked him to “not discuss this further” and, for the fourth time, directed petitioner’s attorney to proceed.
On appeal, petitioner asserts that the PCR court erred by denying his motion for a continuance. We review the denial of a motion for a continuance for abuse of discretion. State v. Ferraro,
We conclude that the PCR court abused its discretion by denying petitioner’s motion for a continuance without allowing petitioner to make a record regarding the basis for the motion. Whether denial of a motion for a continuance is error depends on the particular circumstances of the case. State v. Ringler,
The PCR court initially stated that it was denying petitioner’s motion as untimely, but the court did not provide petitioner an opportunity to explain why he was making the motion when he was. Unanticipated circumstances can arise, and a trial court cannot deny a motion for a continuance simply because the motion is made on the day of trial; whether a court may deny such a motion depends upon the particular circumstances of the case. See Hickey,
Moreover, petitioner was able to alert the PCR court that his motion was related to his concerns about his court-appointed attorney. Depending on what they were, those concerns could have necessitated a continuance. For example, if petitioner’s concern was that his attorney had a conflict of interest, the court would have had to hold a hearing, and, if there was such a conflict, the court would have had to appoint substitute counsel. See Combs v. Baldwin,
The dissent contends that the PCR court did not err by denying defendant’s motion for a continuance. Specifically, the dissent contends that the PCR court could properly deny defendant’s motion for three reasons: (1) petitioner made the motion himself, as opposed to having counsel make it; (2) the motion was untimely because it was not filed 28 days before trial as required by UTCR 6.030; and (3) the case had been pending for three years and the PCR court was prepared for trial.
First, petitioner was not required to have PCR counsel make the motion for him because the motion was based, at least in part, on petitioner’s complaints about PCR counsel himself. Petitioner informed the court that he believed that his PCR counsel had been “non-responsive” and had “completely failed to provide suitable counsel [.]” And, although petitioner did not believe that PCR counsel was prepared for trial, PCR counsel was proceeding to trial. Thus, petitioner and PCR counsel’s positions were at odds, and, consequently, petitioner was not required to sit silently when PCR counsel began to present petitioner’s case. Petitioner could personally raise the issues of whether his right to suitable counsel was being violated and whether his PCR counsel was failing to raise grounds for relief.
Indeed, to the extent that petitioner’s complaints were that his PCR counsel was failing to raise grounds for relief, petitioner was required to speak up in order to protect his ability to raise those grounds. Under the PCR Act, “[a] 11 grounds for relief claimed by a petitioner in a [PCR] petition * * * must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief therein which could not reasonably have been raised in the original or amended petition.” ORS 138.550(3). In addition, although petitioners have a right to suitable counsel, ORS 138.590(1), if a petitioner’s PCR counsel fails to raise a ground for relief, the petitioner must personally inform the court of the failure. The Supreme Court made this requirement clear in Church, where it held that, if a petitioner’s PCR counsel fails to assert a ground for relief, the petitioner “could not sit idly by and later complain,” instead, the petitioner “must inform the court at first opportunity of his attorney’s failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner’s request.”
In support of the dissent’s claim that the PCR court could deny petitioner’s motion for a continuance on the ground that petitioner made the motion himself, the dissent relies on Johnson, in which the Supreme Court stated that “represented parties ordinarily must appear through counsel,”
The dissent’s second reason for concluding that the PCR court did not err by denying petitioner’s motion for a continuance — viz., that the PCR court could deny the motion because it was not filed 28 days before trial — is also incorrect. The PCR court could not deny petitioner’s motion for a continuance on the ground that it was untimely without affording petitioner an opportunity to make a record regarding the timing of the motion. As discussed above, unanticipated circumstances necessitating a continuance can arise. A court can deny a motion for a continuance made on the day of trial as untimely, absent a showing of good cause for the timing of the motion, but a court cannot deny a party a reasonable opportunity to make such a showing.
Finally, the dissent’s third reason fоr concluding that the PCR court did not err by denying petitioner’s motion for a continuance — viz., that the PCR court could deny the motion because the case had been pending for three years and the PCR court was prepared for trial — is also incorrect. The dissent asserts that “the denial of the motion was within the range of permissible discretionary rulings, given the circumstances of the case.”
Thus, we disagree with the dissent’s conclusion that the PCR court could deny petitioner’s motion as it did. We conclude that the PCR court could not summarily deny the motion without affording petitioner the opportunity to make a record. Consequently, we must reverse and remand. Harper,
Although we resolve this appeal based on our conclusion that the PCR court erred by denying petitioner’s motion for a continuance, which is the subject of petitioner’s first assignment of error, we write further to respond to the dissent’s analysis of petitioner’s second and third assignments of error, which concern the PCR court’s responses to petitioner’s complaints, made at and after trial, concerning his PCR counsel. Specifically, in his second assignment of error, petitioner asserts that the PCR court erred when “it denied petitioner’s verbal Church v. Gladden motion to instruct counsel to further investigate his claims, or, alternatively for substitution of counsel,” and, in his third assignment of error, petitioner asserts that the PCR court erred when it “failed to act on petitioner’s written motion pursuant to Church v. Gladden”
The dissent rejects both of those assignments, concluding that the PCR court did not err because it could determine that petitioner’s complaints about his PCR counsel were only about “evidence” or “strategy” and, therefore, were not types of claims that, under Church, required either instructions to PCR counsel or substitution of counsel.
To explain our disagreement with the dissent, we must provide additional information about the nature of the proceedings. In the underlying criminal case, petitioner was charged with crimes for shooting another man, Seifried. The state’s theory was that petitioner shot Seifried because he was angry that Seifried would not help him commit a robbery. Petitioner’s theory was that it was Seifried who wanted to commit a robbery, and, when petitioner refused to help Seifried and took Seifried’s gun, Seifried attacked him, and, in the fight that followed, petitioner accidentally shot Seifried. Both sides presented evidence in support of their theories, and the jury convicted petitioner.
Thereafter, petitioner filed the PCR petition in this case. In the petition, petitioner alleged, among other things, that his defense counsel had failed to adequately represent him at trial and sentencing. Petitioner’s specific allegations included that his defense counsel had failed to call certain witnesses to testify at his trial and sentencing.
Before the PCR trial, petitioner’s PCR counsel filed a trial memorandum. In the memorandum, PCR counsel identified evidence that supported a few of petitioner’s claims, but he failed to do so for many of petitioner’s claims regarding defense counsel’s failure to call witnesses.
On the day of the PCR trial, it became apparent that petitioner’s PCR counsel had abandoned many of petitioner’s claims. As the state had pointed out, counsel had failed to present documentary evidence to support the majority of petitioner’s claims regarding new witnesses, and, at trial, he failed to present any testimonial evidence to support those claims. The only witness petitioner’s counsel called during the PCR trial was petitioner himself, and the evidentiary portion of the trial consisted only of PCR counsel identifying the claims as set out in the trial memorandum and asking petitioner if he had anything to add.
At several points during the trial, petitioner answered that he had nothing to add because, although he had asked PCR сounsel to gather evidence and call witnesses, PCR counsel had failed to do so. In response to almost all of those complaints, the state moved to strike petitioner’s answer on the ground that it was nonresponsive, and the PCR court granted the motion. For example, the following colloquy occurred when PCR counsel asked petitioner whether he had anything to add to the claims relating to Love and Harris:
“[PCR COUNSEL:] [Claim] 7-Echo, Christina Love? Same question?
“[PETITIONER:] Yes. I believe that she should have been called here today to testify in this matter. I did ask you to have her subpoenaed, because she was on my witness list at trial, but never called. And she was in the courtroom the day of trial.
“ [PCR COUNSEL:] Anything further?
“[PETITIONER:] No.
“[PCR COUNSEL:] 7-F, Melissa Henry?
“[PETITIONER:] Once again, I have directed you to go get an affidavit and talk to her, and I’ve talked to Mr. Kraft, your investigator several times, I wrote him and talked to him, and he never did go get a statement from her.
“ [STATE’S ATTORNEY]: Objection, Your Honor, move to strike. Not relevant and it’s not responsive to the question and issues before the Court.
“THE COURT: That’s sustained.”
At the conclusion of the trial, the PCR court denied relief. In its written judgment, the court concluded that petitioner had failed to support his claims against PCR counsel because he had failed to offer testimony about those claims during the PCR trial. The court explained:
“At trial, [p]etitioner moved to postpone the hearing, claiming ineffective assistance of [PCR] counsel. He contended that Mr. Cowan had not been responsive to him. It is the [c]ourt’s opinion that the materials submitted by Mr. Cowan adequately portray [p] etitioner’s contentions, to which he agrеed, in that he did not offer additional testimony at trial, except what was successfully objected to by the state.”
After the trial, petitioner filed a written motion, asserting that he had asked PCR counsel to obtain testimony from witnesses who had not been called at the criminal trial and who would have supported petitioner’s account of what had occurred, including witnesses who would have testified that Seifried had spoken about his plans to commit robberies and that Seifried had been in possession of guns.
Based on the record, we disagree with the dissent’s opinion that the PCR court could conclude that petitioner’s dispute with PCR counsel was merely a dispute about evidence or strategy. It is clear from the record that petitioner was complaining about PCR counsel’s failure to present any evidence, physical or testimonial, in support of the majority of petitioner’s claims, a failure that the state itself had called to the attention of the PCR court and that the record bears out. Petitioner’s complaints about PCR counsel, together with PCR counsel’s own filings and trial presentation, were sufficient to put the PCR court on notice that petitioner was raising concerns about PCR counsel’s abandonment of claims. Consequently, petitioner’s dispute with PCR counsel could not be summarily dismissed as a dispute about how to raise claims; rather, it was a dispute about whether to raise claims at all.
In sum, we conclude that the PCR court erred by denying petitioner’s motion for a continuаnce without affording petitioner an opportunity to make a record regarding the basis for the continuance. And, in response to the dissent, we further conclude that the PCR could not reject, without further inquiry, petitioner’s complaints about PCR counsel’s abandonment of many of petitioner’s claims. We therefore reverse and remand for a new trial.
Reversed and remanded.
Notes
Petitioner also alleged that, after Seifried testified, defense counsel should have recalled certain witnesses to impeach Seifried’s testimony.
We mention Love, Henry, and Davis as representative uncalled witnesses. In his petition, petitioner identified several others who he alleged should have been called. He also alleged that other physical and scientific evidence should have been presented.
To avoid confusion, we refer to the defendant in this PCR case, who is the superintendent of the correctional facility where petitioner is incarcerated, as “the state.”
The dissent seems to suggest that the testimony of the witnesses who did not testify at trial would have been duplicative of the testimony of the witnesses who did testify, including Everson, Helzert, and Goldsberry.
In the trial memorandum, for many of the claims, PCR counsel simply repeated the claim stated in the petition and then stated, “Petitioner may elect to testify about [the claim] at his post-cоnviction relief trial.”
The dissent notes that affidavits from two individuals, Collison and Harper, were introduced as evidence at the PCR trial.
The dissent repeatedly asserts that petitioner’s complaints regarding PCR counsel concerned only “the quantum” of evidence that PCR counsel presented. See, e.g.,
The dissent appears to contend that, so long as PCR counsel presented evidence to support petitioner’s claim that Seifried was the aggressor, PCR counsel raised all of petitioner’s PCR claims. See
Dissenting Opinion
dissenting.
In fact, this irrepressible petitioner made his record before he left the stand. The court had several sound reasons to have immediately denied his motion to postpone trial when the court tried to cut him off. Later, without being cut off, petitioner made his record in writing. In two memos to the court, he repeated his reasons to have asked for postponement and, for the first time after trial, asked for a new lawyer. Later still, petitioner addressed the court in a hearing, with all the same reasons, in an effort to set aside the judgment. None were good reasons for postponement or for a new lawyer. None involved his lawyer’s failure to have asserted grounds for post-conviction relief. None were the sort of reasons that the majority imagines, which might have been offered by a different petitioner in a different situation. Because there is a record, there is no basis to reverse the judgment.
Nor is there good authority. Reversing judgment returns our law to a state of confusion in which petitioners may make pro se motions about trial procedure whenever shadowed by disagreement with counsel. It is a state of confusion in which petitioners may be entitled tо substitution of counsel although the trial court found only a disagreement about a choice of evidence or trial strategy. It is a state of confusion in which we ignore the trial court’s findings about petitioner’s disagreement with counsel. Because that state of affairs has already been rejected by our Supreme Court, I dissent.
The majority conflates the issues, rather than treating them distinctly, because petitioner does the same. In his appeal of a judgment denying post-conviction relief (PCR), petitioner first disputes the court’s denial of his pro se motion to postpone the trial, which he urged as the trial began. Second, he disputes the court’s response to his complaints about PCR counsel. Those complaints were made in colloquy on postponement of trial, but, on appeal, the complaints are incorrectly described as a request for directions to counsel or for substitution of counsel. Third, he disputes the court’s denial of a written pro se motion, filed between trial and judgment, in which he did seek substitution of counsel or, alternatively, directions to counsel. The post-trial motion was based on the alleged inadequacy of his PCR counsel. As to those issues of postponement and representation, this court should affirm.
FACTS
The underlying criminal case began with a shooting. After drinking and playing video poker in the Chans’s restaurant, petitioner and the victim had an argument outside in the parking lot. Petitioner shot the victim. The victim was found in another location and survived the shooting, but he was left paralyzed from the neck down. The victim accused petitioner of shooting him intentionally after the victim had refused to join petitioner in robbing a tavern across the street. Petitioner testified that the victim had wanted to rob the restaurant and that petitioner shot the victim accidentally, while he was defending himself from the victim. A jury convicted petitioner of first-degree assault, ORS 163.185, second-degree kidnapping, ORS 163.225, and felon in possession of a firearm, ORS 166.270.
In 2010, Cowan was appointed as counsel to represent petitioner in PCR proceedings. Cowan filed a petition alleging, as a ground for post-conviction relief, that petitioner’s defense attorney failed to conduct a reasonable investigation, failed to obtain additional video from the restaurant security cameras, failed to call some witnesses, and failed to recall other witnesses to reiterate their testimony.
As trial began, the court admitted the parties’ exhibits, including excerpts from the transcript of the underlying criminal trial. Each party filed trial memoranda. Cowan’s trial memo reached 42 pages, citing evidence in support of petitioner’s numerous arguments. Because much of the testimony upon which petitioner relied in his PCR trial had already been given in the criminal trial, the testimony of those witnesses was offered and
Everson had already testified that the victim possessed a gun two days before the shooting and that the victim had asked Everson to be a wheelman in a robbery that the victim planned. Helzer had testified that the victim had financial obligations, wanted to commit a robbery, had a gun, and, after the shooting, had said that it was an accident. Goldsberry had testified that the victim had a reputation for violence, that he had seen the victim with a gun three days before the shooting, and that, after the shooting, the victim had described it as an accident.
In addition, petitioner’s exhibits offered testimony by affidavit from two more witnesses. Attesting to be an undiscovered witness to the shooting, Collison described the victim as the attacker. Collison reported that he had observed the shooting from a nearby motel. To explain his belated account, he suggested:
“Since I was not registered at the motel under my real name, I do not believe there was any way for [petitioner] or his defense counsel to be aware of me, or what I witnessed, until I initiated contact with [petitioner] while he was in prison for the above mentioned attack on him.”
Petitioner’s evidence also added an affidavit from Harper, an inmate and another new witness. Harper attested that he had spoken with the victim after the shooting. Harper recalled that the victim had admitted that he had planned a robbery, that petitioner had objected to the plan, a fight followed, and, according to the victim, the shooting was an accident.
As the PCR trial began, all of petitioner’s exhibits were received without objection. Petitioner’s attorney Cowan recited for the record that the court had agreed to leave the record open for 30 days in an effort to locate any missing surveillance tаpes from the incident. Petitioner believed that there were additional tapes from the restaurant, including one of the parking lot.
Before taking testimony, the court explained that it had already received and reviewed “all the materials” on the case and reviewed everything “extensively.” To discourage testimony that would repeat the written evidence, the court cautioned petitioner, “I’ve read this more than once.” Cowan responded that he had met with petitioner in preparation and would offer petitioner’s testimony on anything he could add to the evidence and argument already in the exhibits and trial memo.
Upon taking the stand, petitioner spoke on his own initiative and not through counsel:
“MR. PHILLIPS: Your Honor, before we begin I’d like to address the court. I am moving at this time for a continuance of this proceeding.
“THE COURT: That’s not allowed, Mr. Phillips. I’m denying your motion as not timely. Go ahead, Mr. Cowan.”
The court acknowledged that petitioner was “asking that this be continued,” but “the answer to that [is] it’s not going to be continued.” Petitioner insisted on making a record, presumably about the basis for his motion. This colloquy followed:
“MR. PHILLIPS: Mr. — well, I’d like to put on the record that Mr. Cowan has been non-responsive to my request to assist me and has completely failed to provide suitable counsel as required for my post-conviction proceedings.
“THE COURT: All right.
“MR. PHILLIPS: Mr. Cowan—
“THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented you. I am not going to delay these proceedings based on your belief about that.”
Petitionеr began to explain that his concern involved “witnesses,” but the court did not permit petitioner to say more.
Although he was cut short, petitioner still persisted in interjecting comments eight times, when asked during his direct examination to add to a point from the trial memo. He repeatedly commented that the point in question was one that his PCR attorney should have supported by calling a live witness or securing a witness affidavit. Seven of eight times, the state moved to strike the remarks as nonrespon-sive, and each time the court granted the objection. As an evidentiary matter, petitioner has not assigned error to the court’s rulings on the
After closing arguments, the court took the case under advisement, while allowing 30 days for Cowan to offer any additional surveillance videotape. The court added:
“[I]t’s appropriate at this point that I make one further observation, and that is in the beginning of these proceedings Mr. Phillips intended that he wanted it postponed, because he didn’t feel as though Mr. Cowan had been adequately representing him. * * *
“* * * I can tell from the materials that have been submitted, and the efforts set forth here today that Mr. Cowan is doing a great job, and good job in representing Mr. Phillips, and the idea that he has been inadequate in his representation is entirely without merit.”
After trial but before judgment, petitioner filed a pro se motion “for substitution of counsel or to compel counsel to carry out pеtitioner’s request.” This post-trial filing was petitioner’s first request for substitute counsel or for directions to counsel. Petitioner’s supporting memorandum asserted that Cowan had not attempted to get the security video tapes. Echoing the PCR claim itself, the post-trial memorandum reiterated that “petitioner has discovered witnesses who were available for trial, but who were not called.” The memoandum did not name specific witnesses nor indicate what their testimony would have been. Petitioner stated that “[o]ne witness would have testified that he saw the entire event in support of petitioner’s account.” That statement would seem to refer to Collison, whose affidavit had, in fact, been admitted as an exhibit. Petitioner complained that
“Mr. Cowan ha[d] deliberately ignored petitioner’s requests and refused to communicate with him for approximately one year. Then, just prior to the post-conviction hearing, Mr. Cowan provided petitioner with a Memorandum, which has no chance of meeting the post-conviction standard for relief without unless [sic] Mr. Cowan also provides the evidence and witnesses discussed in the Memorandum.”
He cited Church v. Gladden,
In a letter, Cowan wrote to the court and reported that he was not able to obtain any missing surveillance videos. He advised that “the lead detective had retired and the tapes ha[d] gone missing or were destroyed.”
Two weeks later, the court entered a judgment denying post-conviction relief. The judgment addressed petitioner’s assertion of the inadequacy of Cowan as counsel, recounting:
“At trial, petitioner moved to postpone the hearing, claiming ineffective assistance of [post-conviction] counsel. He contended that Mr. Cowan had not been responsive to him. It is the court’s opinion that the materials submitted by Mr. Cowan adequately portray petitioner’s contentions, to which he agreed, in that he did not offer additional testimony at trial, except what was successfully objected to by the state. The petitioner also moved the court to allow the assistance of a paralegal. The court denied the motions as not timely and inappropriate and required that the case proceed.”
The judgment’s statements responded both to the pro se motion in-trial to postpone and, by necessary implication, to the pro se motion post-trial to substitute counsel. See ORS 18.005(7) (general judgment defined); ORS 18.082 (effect of general judgment).
Turning to the merits, the court found that petitioner was not credible. The court observed that “[h]e has concocted a broad array of material, most of which would not be relevant under any interpretation of the law.” The court found that “the affidavits of trial counsel, the prosecutor, trial transcripts and police reports are believable” and that the jury had had the opportunity to weigh credibility in reaching its verdict. The court found that most of the witnesses that petitioner believed should have been called to exonerate him had, in fact, already testified in his defense at his criminal trial. Petitioner had complained that those witnesses should have been called back to repeat their testimony after the victim’s testimony was delayed by illness. Thе court observed that asking witnesses to repeat their testimony “to ‘
Later, petitioner moved for relief from judgment and sought a new trial under ORCP 71 C. The court held a hearing, and allowed petitioner, who appeared pro se, to argue. He argued that, during trial, the court had prevented him from raising an issue under “Church vs. Gladden in [his] post-conviction [hearing] and state things on the record.” See Church,
MOTION TO POSTPONE
As to the first assignment of error, this court reviews the denial of a motion for a continuance of trial for an abuse of discretion. State v. Martinez,
In this instance, any of three reasons made the court’s prompt response to petitioner’s pro se postponement motion a permissible response. The court responded, “That’s not allowed, Mr. Phillips. I’m denying your motion as not timely.”
First, because petitioner was represented by an attorney, yet urging a procedural motion pro se, the court was correct to say, “That’s not allowed.” In a recent PCR case, the Supreme Court held that a petitioner who has appointed counsel is not permitted to file ordinary motions on his or her own behalf. Johnson v. Premo,
Second, a request to postpone trial must be mаde by motion, signed by the attorney of record, contain the necessary information, and be “filed at least 28 days before the date then set for trial.” UTCR 6.030(1), (2), (4). Petitioner’s request met none of the requirements of the rule.
Third, the denial of the motion was within the range of permissible discretionary rulings, given the circumstances of the case. The case had been filed December 21, 2009. By joint motion, trial had already been postponed before. The case had been pending for
The majority rejects those reasons because petitioner’s motion to postpone trial was based on a disagreement with counsel about what evidence was necessary to try the case. Previously, in an order in Johnson, our court had misconstrued its prior decision in Church,
“ [a] petitioner * * * may file a motion in his or her own name based on a showing that the petitioner has a good faith and objectively reasonable belief that counsel lacks, or is failing to exercise the ‘skills and experience commensurate with the nature of the conviction and complexity of the case.’”
COMPLAINT ABOUT COUNSEL
Petitioner’s second assignment of error should fail for different reasons, some specific to this record and some based on legal principles. In a misleading fashion, petitioner asserts that the PCR court “erred when it denied petitioner’s verbal Church v. Gladden motion to instruct counsel to further investigate his claims or, alternatively for substitution of сounsel.” In Church, the Supreme Court enforced ORS 138.550(3), which bars relitigating claims in a second PCR proceeding, when the PCR claims already were or reasonably could have been asserted in a prior PCR proceeding.
In this case, petitioner’s initial problem is that, at trial, petitioner did not ask the PCR court to give directions to counsel, and he did not ask the court to substitute new counsel. Petitioner did not ask for the relief that his second assignment of error says that he did. At the beginning of trial, petitioner’s complaint about PCR counsel arose in colloquy about his pro se motion to postpone trial. In reaction to a prompt denial, petitioner asked to put his reasons to postpone on the record. His complaint about PCR counsel occurred in this colloquy:
“MR. PHILLIPS: I can’t state something for the record?
“THE COURT: Mr. Cowan or Mr. Phillips you’re asking that this be continued, and the answer to that [is] it’s not going to be continued. So, go ahead please.
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“MR. PHILLIPS: Mr. — well, I’d like to put on the record that Mr. Cowan has been non-responsive to my request to assist meand has completely failed to provide suitable counsel as required for my post-conviction proceedings.
«⅜⅜⅜‡‡
“THE COURT: Very well, I understand you object to this and you believe that he has not adequately represented you. I am not going to delay these proceedings based on your belief about that.
“MR. PHILLIPS: Well, I’d like to state these issues on the record, Your Honor.
“THE COURT: I don’t want to—
“MR. PHILLIPS: This is the only timе is in a post-conviction proceedings.
“THE COURT: Well, you have said that you feel he has been unresponsive and not represented you adequately. That’s about as broad as it possibly could be Mr. Phillips. [It] covers about everything—
“MR. PHILLIPS: Well, there’s — there’s—
“THE COURT: —that you might later claim. So—
“MR. PHILLIPS: There’s witnesses—
“THE COURT: —I’m going to ask you sir to not discuss this further.”
(Emphases added.) The colloquy reflects that (a) a “continuance” or “delay” of trial was the request at issue at that time; (b) petitioner’s desire to postpone trial was founded on his dissatisfaction with PCR counsel; and (c) his dissatisfaction with counsel involved “witnesses” to support the PCR claim that his lawyer did bring. The court and petitioner spoke only about a motion for trial postponement.
Contrary to the second assignment of error, petitioner had not made a “verbal Church v. Gladden motion to instruct counsel to further investigate his claims or, alternatively, for substitution of counsel.” The trial court could not have erred with regard to a verbal motion that was never made and never denied.
I do share the majority’s concern that petitioner was prevented from speaking further in his initial complaint about counsel as trial began. But, before reversing summarily, we should look at the entirety of the proceeding to see whethеr petitioner managed to make a record and, if so, whether it would have justified substitution of counsel. When doing so, we will discover that petitioner’s deeper problem is the merits. He made a record about his dissatisfaction with counsel’s presentation of his case, and, on that record, his complaint is not the kind of complaint that is cognizable under Church, nor grounds for substitution of counsel. To explain, I return to the trial record, then consider Church, its sequel, and authority on substitution of counsel.
Immediately after the opening colloquy, PCR counsel proceeded with petitioner’s direct examination using petitioner’s trial memo as a guide through the issues and evidence. In that 42-page memo, petitioner had applied the evidence to his multiple arguments, citing his 25 exhibits, affidavits, depositions, and excerpts of the underlying criminal trial transcript. That is what the PCR court had reviewed more than once before trial began. PCR counsel worked through the memo, point by point, asking petitioner if he had any testimony to add.
On eight points, petitioner replied nonresponsively by interjecting that the matter in question was one for which PCR counsel should have done more, such as calling a live witness or securing an affidavit. In that way, petitioner succeeded through his direct examination in making specific what he had meant, as trial began, by a general reference to "witnesses” when he sought postponement and complained about PCR counsel. No purpose would be served by published review of
When asked if petitioner had anything to add about an argument that criminal trial counsel had failed to use information from a defense investigator to discredit the shooting victim, this exchange ensued:
“Q. *** Is there anything relative to this particular claim that is not covered here * * * that you wish to add to that claim for the court’s review?
“A. Other than that I’ve asked you to have them here for testimony in my trial repeatedly, and it hasn’t been done. Not even affidavits from them haven’t [sic] been submitted.”
As to another point involving Goldsberry, this exchange followed:
“Q. Claim C, the Goldsberry. Additional testimony?
“A. Yes, that I have asked you numerous times to have your investigator or you subpoena Mr. Goldsberry to this trial, and/or get a signed affidavit from him which hasn’t been done.”
As to witness Everson, a similar exchange followed:
“Q. Anything further you wanted to add to that matter?
“A. The same thing. I’ve asked you to have them testify live or affidavit, and neither one has been done.”
PCR counsel had already offered in evidence the sworn testimony of several witnesses supporting petitioner’s theory of the shooting. PCR counsel did not call the witnesses to repeat their testimony, but he did have their testimony in the PCR record to support petitioner’s arguments about the failure of the original defense attorney to have called or re-called witnesses. PCR counsel also secured the admission of the affidavits of Collison and Harper. Collison attested to witnessing the shooting and he described the victim as the aggressor. Harper attested that the victim had admitted planning a robbery and that the victim had described the shooting as an accident.
All those things — numerous exhibits and an eviden-tiary trial memo — the PCR court had admitted and reviewed when trial began. As a consequence, when petitioner faulted his attorney, and when petitioner particularized his complaints with eight references to evidence he wanted, the PCR court had a record from which to know that PCR counsel had already covered the points with documentary exhibits or with testimony in affidavit, depositions, and transcript. The PCR court had a record with which to recognize that petitioner’s dispute with counsel was a dispute about additional evidence, which is a matter of trial strategy. The PCR court could recognize from petitioner’s remarks that petitioner failed to appreciate the shift in issues from a criminal trial to a proceeding for post-conviction relief. Petitioner wanted to retry his criminal case in order to determine anew his credibility and his account of the shooting. From that record, we should recognize that petitioner’s dispute with counsel was not about a failure to allege any claim or ground for relief in the PCR proceeding. As such, petitioner’s quarrel with PCR counsel was not a quarrel cognizable under Church. Nor were petitioner’s complaints the sort to justify substitution of counsel. Several cases lead to those related conclusions.
In Church, introduced above, the issue was whether claims were precluded from relitigation in a subsequent or second PCR proceeding.
In something of a sequel, the Johnson decision explained Church, distinguishing those disagreements that are not reason for court intervention in a dispute with counsel from those that are.
‘“If petitioner’s attorney in the first post-conviction proceeding failed to follow any legitimate request, petitioner could not sit idly by and later complain. He must inform the court at first opportunity of his attorney’s failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner’s request.’”
Id. (emphasis added) (quoting Church,
“Church thus pertained to the res judicata provision of the [Post Conviction Hearing Act], ORS 138.550(3), nothing more. It concerned the extent to which a post-conviction petitioner may assert a ‘ground for relief in a subsequent petition that could have been asserted earlier. This court held that, if a postconviction petitioner’s attorney fails to assert a ground for relief, the petitioner must ‘inform the court’ of the attorney’s failure to avoid the preclusive effect of ORS 138.550(3). To be sure, the court referred to an attorney’s failure to follow ‘any legitimate request.’244 Or at 311 . But that reference should be taken in context. The court’s statement plainly was rooted in its interpretation and application of ORS 138.550(3), which provides that ‘grounds for relief must be asserted or be deemed waived.”
Id. (emphases added). Church was about omitted claims in relation to claim prеclusion; it was not about whether PCR counsel and client disagree about a client’s desire for additional witnesses or other matters of trial strategy.
Nonetheless, the Johnson petitioner had “insist [ed]” that one of the Church petitioner’s grievances had been that his attorney had failed to present witnesses on a ground that was alleged in the first proceeding — that is to say, the “witness claim.”
“Church says no more than this: If a post-conviction petitioner’s attorney fails to assert a ground for relief, the petitioner must bring that fact to the attention of the court to avoid the effect of ORS 138.550(3).”
Id. (emphasis added). Church does not authorize a petitioner to file motions or interpose objections “on every single issue of trial strategy” or evidentiary disagreement. Id. “By its terms, the decision is limited to the matter of attempting to relitigate a ‘ground for relief within the meaning of ORS 138.550(3).” Id.
As for the substitution issue here, in State v. Langley,
“[he] was not allowed to put on all of his evidence and was lied to and manipulated by his attorneys in order to keep this evidence out of the proceedings. His attorneys did not discuss defense strategy nor go over the defendants [sic] testimony before his taking the stand.”
Id. at 257 (internal quotation marks omitted). The trial court gave the defendant several options in proceeding with or without existing counsel. Whatever the choice, the court warned that the trial would not be postponed. Id. The defendant chose to continue with counsel, but he still filed a written motion for substitution of counsel,
The Supreme Court framed the issue as a factual assessment of whether the complaint against counsel was “legitimate.” The standard of review was for abuse of discretion. Id. at 258. The court concluded:
“It appears from the record that defendant’s claim that his lawyers were ineffective (or inadequate) was based chiefly on his dissatisfaction with their choices of strategy. A simple loss of confidence or disagreement with counsel’s approach to matters of strategy is not cause to substitute one appointed lawyer for another.”
Id. at 258 (emphasis added). The Supreme Court held that the trial court had not abused its discretion in denying the defendant’s motion for substitution of counsel. Id. at 259.
In this case, the PCR court could recognize, as should we, that petitioner’s complaint that PCR counsel had “been non-responsive” to petitioner’s requests involving “witnesses” was not a cognizable failure under Church, because disagreеment about additional testimony was not a failure to have raised alleged claims for relief. When petitioner protested a lack of witnesses on a number of points, petitioner further specified for the record the nature of his disagreement with counsel. Before petitioner left the stand, he had made plain to the PCR court that his issues with PCR counsel were matters of disagreement about additional evidence or trial strategy. As such, they were not issues that were necessary to prevent claim preclusion under Church.
Properly understood, petitioner was concerned, not about a Church failure to allege a claim, but about the quantum of proof presented for a claim that his lawyer did allege. As such, petitioner’s grievance against counsel resembled the “witness claim” in Church, a disagreement that Johnson limited by distinguishing differences over strategy. It is that “witness claim” from Church that the majority resurrects here as if it were a true Church claim against counsel.
If, because he was cut short, we were to assume petitioner would have asked that the court give directions to counsel or substitute counsel, then we should conclude that the PCR court did not abuse its discretion in denying such an implicit request, because the record demonstrates that petitioner’s problem with counsel lay in how well counsel presented the claims, not whether counsel failed to allege claims or grounds for relief. See Johnson,
MOTION TO SUBSTITUTE COUNSEL
Petitioner’s third assignment of error presents morе squarely the same problems and principles. Petitioner asserts that the PCR court “erred when [it] failed to act on petitioner’s written motion pursuant to Church v. Gladden” It was not until that motion, made after trial, that petitioner actually asked the court to substitute counsel or, in the alternative, to direct counsel’s work.
In his pro se memorandum on his motion, petitioner reiterated the argument that he had discovered witnesses who were available for trial but not called. Although not named, the one witness who he described was an eyewitness who saw the shooting. Based on the same evidentiary complaints made during trial, petitioner asked for new counsel or directions to existing counsel. As just discussed, petitioner’s dissatisfaction was based in a desire for additional evidence. It was a disagreement about trial strategy.
Petitioner seemed not to have appreciated the function of the testimony and evidence that was already in the PCR record. Nor does the majority opinion when describing petitioner’s complaint about Cowan as an “abandonment of claims.”
Petitioner complained that PCR counsel should have offered affidavits or called live witnesses who had not been at the criminal trial. PCR counsel had, however, offered the affidavit of Collison, the previously undiscovered eyewitness, who described the victim as the attacker. Harper’s affidavit was in evidence, too. Whether live or by affidavit, that witness testimony did serve to pursue, not abandon, petitioner’s theory about who was the aggressor. On review, our role ought not be to weigh the adequacy of that evidence in presenting petitioner’s case, nor should we disregard, as does the majority, the evaluation that the PCR court did do.
The majority mentions by name three uncalled witnesses, as if suggestive of Cowan’s abandonment of the PCR case.
Moreover, there could be good reason to avoid calling duplicative witnesses. For example, the majority, referring to the petition, repeats the allegation that “Henry, who was [the victim’s] girlfriend at the time of the shooting, would have testified that Seifried intended to commit a robbery and that he possessed guns.”
The majority quarrels with the idea that trial counsel could have chosen to avoid duplicative witnesses.
After the PCR trial, petitioner had several, unlimited opportunities to describe his dissatisfaction with Cowan— the post-trial motion for new counsel, the motion for relief from judgment, and a hearing before the court on the last motion. It is significant that, in his memos to the сourt, petitioner never once mentioned Love, Henry, or Davis. Instead, he complained of the absence of Collison, the undiscovered eyewitness at the time of the underlying trial, whose affidavit was in evidence. Although petitioner was unhappy with the quantum of evidence, the record dispels any notion that that there was an “abandonment” of petitioner’s claim. Even if Church
As a consequence, petitioner’s post-trial motion was no more than a motion for substitution of counsel or for directions to counsel. Coming late, it was a motion made after trial was concluded and the record closed, except for the search for any additional surveillance tapes. We review a denial of a request for substitute counsel in a PCR case for an abuse of discretion. Temple v. Zenon,
At the conclusion of trial, the court had already responded to petitioner’s complaint about counsel, observing that, after review of petitioner’s materials and after observing trial, “Mr. Cowan [was] doing a great job [.]” Moreover, “the idea that he has been inadequate in his representation is entirely without merit.” In the judgment, the court declared, “It is the Court’s opinion that the materials submitted by Mr. Cowan adequately portray petitioner’s contentions * * * ” After unlimited written arguments after trial and after judgment, the PCR court explained that petitioner’s complaints against Cowan “simply were unpersuasive.”
In Langley, the Supreme Court considered a defendant’s similar dissatisfaction with trial counsel.
In this case, the trial court had observed PCR counsel throughout trial and had received evidence point by point covering petitioner’s numerous claims. The judge had experience in “well over 100” PCR cases when he concluded that PCR counsel had done a “great” job. The PCR court had a record upon which to conclude that petitioner’s dissatisfaction, like the petitioner in Langley, involved a loss of confidence or dissatisfaction over strategy and presentation. It was not cause for directions to counsel or substitution of counsel. In this appeal, we should address the third assignment of error, where petitioner does present thе issue of substitution of counsel. Based on the full record upon that motion, we should conclude that the court did not abuse its discretion in allowing the substitution motion to be denied by operation of judgment. See Langley,
MAJORITY OPINION
To be precise, the majority addresses only the first assignment of error concerning the motion to postpone trial, although its rationale necessarily involves issues attempted in the second assignment and actually asserted in the third assignment concerning counsel.
Citing Combs v. Baldwin,
“The trial court record is silent as to whether plaintiff had the opportunity, after the trial court ruled, to protest personally the trial court’s denial of his request to substitute counsel or to appear pro se. * * *
“*** Because plaintiff was not given an opportunity to be heard, we cannot determine whether he has had the opportunity to present his side of the issues. It would be a different matter if he had such an opportunity and had failed to offer an explanation of his claims.”
Combs,
In this case, the record is not “silent.” Petitioner did have an opportunity “after the trial court ruled” to “protest personally” and “to offer an explanation of his claims.” Petitioner’s issue was not an argument about a conflict of interest. His issues were disagreements about the quantum and quality of evidence — live testimony rather than transcribed testimony, additional testimony on points covered in affidavits and the underlying transcript, and videotape that did not exist. Under Langley, those were issues involving trial strategy or “a simple loss of confidence” inasmuch as they involve the presentation or quantum of evidence.
In the course of this case, the PCR court decided that PCR counsel was adequate several times — when commenting at the end of trial, when entering judgment, and when denying petitioner’s motion to set aside judgment. In contrast, the majority decides the appeal by focusing solely on the PCR court’s initial ruling on the motion to postpone. By isolating on the abrupt manner in which the PCR court ruled on postponement, the majority ignores the full record when petitioner actually did move for substitution of counsel without being impeded. By isolating on the absence of a record in the initial colloquy on postponement, the majority is able to proceed as if there were no record or ruling on any Church or substitution issue.
There is, however, a record and a ruling on those issues. The PCR court did evaluate those issues, make findings, and reach conclusions. Before all was said and done, the PCR court explained that petitioner’s complaints about his PCR counsel were “unpersuasive.” If we afforded the trial court the benefit of implicit findings consistent with its conclusion, as we should, Ball v. Gladden,
The issue in the case was not simply about allowing more of a record on postponement. It was not about a failure, under Church, to bring a claim. The issue was whether petitioner had a “legitimate complaint” about counsel or instead had a misunderstanding about evidence or trial strategy. See Langley,
CONCLUSION
In this case, reversal and remand for another trial comes at an unnecessary cost of judicial resources. Worse, we miss the chance to clarify the law where parties confuse or shun the principles in Church, Johnson, and Langley. We perpetuate the confusion by reinstating pro se procedural motions contrary to Johnson, in resurrecting the doubtful “witness claim” from Church, in positing an “abandonment” of a PCR claim where it is a dispute about the quantum of the evidence, and in ignoring findings below while disregarding our standard of review on substitution of counsel. We do the trial courts no favor, because cases like this, involving complaints about counsel, occur repeatedly. Suffering the opinion that the Supreme Court has already rejectеd such confusion, I dissent.
We refer to all versions of ORS 163.185, ORS 163.225, and ORS 166.270 in effect at the time of petitioner’s offenses in 2002.
Petitioner also does not assign error to the failure to have held a hearing per UTCR 5.050 on his earlier, post-trial, prejudgment motion for new counsel or for directions to counsel. See ORAP 5.45 (requiring assignments of error). Before the PCR proceedings concluded, the hearing on his ORCP 71 motion provided petitioner an unimpeded opportunity to make his record once again on those same arguments. See ORCP 71 B(l) (setting aside judgment for excusable neglect). Whether or not ORCP 71 is a vehicle for those arguments, the court entertained the arguments on the merits.
It is revealing that petitioner failed to identify in his second assignment of error the particular ruling that is challenged, failed to set out the pertinent quotation in the record, and failed to demonstrate that the issue was properly raised or preserved in the trial court. See ORAP 5.45(3), (4) (requiring same).
The majority correctly observes, “A PCR trial is not a retrial of the underlying criminal case.”
In his brief, petitioner similarly conflates all three assignments of error by addressing them with one combined argument.