71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 436
House Bill 2355
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows person under 18 years of age or within jurisdiction of
juvenile court to seek post-adjudication relief in juvenile
proceedings. Allows person 18 years of age or older previously
found to be within jurisdiction of juvenile court to seek
post-adjudication relief.
A BILL FOR AN ACT
Relating to juvenile proceedings; creating new provisions; and
amending ORS 138.510, 138.520, 138.525, 138.530, 138.540,
138.550, 138.560, 138.570, 138.580, 138.590, 138.630 and
419C.610.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419C.610 is amended to read:
419C.610. Except as provided in ORS 419C.613 { + and sections
3 and 4 of this 2001 Act + }, the court may modify or set aside
any order made by it upon such notice and with such hearing as
the court may direct.
SECTION 2. { + Sections 3 and 4 of this 2001 Act are added to
and made a part of ORS chapter 419C. + }
SECTION 3. { + (1) In addition to any other grounds upon which
a person may petition a court under ORS 419C.610, a person under
the age of 18 or within the jurisdiction of the juvenile court
may petition the court on the following grounds to set aside an
order finding the person to be within the jurisdiction of the
court under ORS 419C.005:
(a) A substantial denial in the proceedings resulting in the
person's adjudication, or in the appellate review of the
adjudication, of the person's rights under the United States
Constitution or the Oregon Constitution, or both, and the denial
rendered the adjudication void; or
(b) Unconstitutionality of the statute making criminal, if the
person were an adult, the acts for which the person was
adjudicated.
(2) When a person petitions the court on one of the grounds
listed in subsection (1) of this section:
(a) A copy of the petition shall be served on the district
attorney, who shall represent the state in the matter.
(b) The court shall decide the issues raised. The court may
receive proof by affidavits, depositions and other competent
evidence. Oral testimony may be taken by telephone or other means
approved by the court. The petitioner has the burden of proving
by a preponderance of the evidence the facts alleged in the
petition.
(c) The court shall set aside the order finding the petitioner
to be within the jurisdiction of the court if the petitioner
establishes one of the grounds set forth in subsection (1) of
this section.
(3) Either the petitioner or the state may appeal from the
court's order granting or denying a petition for relief under
this section. The manner of taking the appeal and the scope of
review are the same as provided under ORS 419A.200.
(4) Nothing in this section may be construed to limit the
original jurisdiction of the Supreme Court in habeas corpus as
provided by the Oregon Constitution. + }
SECTION 4. { + (1) The effect of a prior proceeding concerning
the adjudication of the person that is challenged in a petition
under section 3 of this 2001 Act is as follows:
(a) The failure of the petitioner to have sought appellate
review of the adjudication, or to have raised matters alleged in
the petition at the prior proceeding, does not affect the
availability of relief under section 3 of this 2001 Act. No
proceeding under section 3 of this 2001 Act may be pursued while
direct appellate review of the adjudication remains available.
(b) When the petitioner sought and obtained direct appellate
review of the adjudication, no ground for relief may be asserted
in a petition for relief under section 3 of this 2001 Act unless
the ground was not asserted and could not reasonably have been
asserted in the direct appellate review proceeding. If the
petitioner was not represented by counsel in the direct appellate
review proceeding, due to lack of funds to retain such counsel
and the failure of the court to appoint counsel for that
proceeding, any ground for relief under section 3 of this 2001
Act that was not specifically decided by the appellate court may
be asserted in the petition described in section 3 of this 2001
Act.
(2) The court may grant leave, at any time prior to entry of an
order granting or denying relief, to withdraw the petition. The
court may make appropriate orders as to the amendment of the
petition or any other pleading, as to the filing of further
pleadings, or as to extending the time of filing of any pleading
other than the original petition.
(3) All grounds for relief claimed in a petition described in
section 3 of this 2001 Act must be asserted in the original or
amended petition, and any grounds not asserted are deemed waived,
unless the court on hearing a subsequent petition finds grounds
for relief asserted therein that could not reasonably have been
raised in the original or amended petition. However, any prior
petition or amended petition that was withdrawn prior to the
entry of an order granting or denying relief by leave of the
court, as provided in subsection (2) of this section, has no
effect on the right of the petitioner to bring a subsequent
petition. + }
SECTION 5. ORS 138.510 is amended to read:
138.510. (1) Except as otherwise provided in ORS 138.540, any
person convicted of a crime under the laws of this state { + or
any person 18 years of age or older who previously was found to
be within the jurisdiction of the juvenile court + }may file a
petition for post-conviction { + or post-adjudication + } relief
pursuant to ORS 138.510 to 138.680.
(2) A petition for post-conviction { + or
post-adjudication + } relief may be filed by one person on behalf
of another person who has been convicted of aggravated murder and
sentenced to death only if the person filing the petition
demonstrates by a preponderance of the evidence that:
(a) The person sentenced to death is unable to file a petition
on the person's own behalf due to mental incapacity or because of
a lack of access to the court; and
(b) The person filing the petition has a significant
relationship with the person sentenced to death and will act in
the best interest of the person on whose behalf the petition is
being filed.
(3) A petition pursuant to ORS 138.510 to 138.680 must be filed
within two years of the following, unless the court on hearing a
subsequent petition finds grounds for relief asserted which could
not reasonably have been raised in the original or amended
petition:
(a) If no appeal is taken, the date the judgment or order on
the conviction { + or the juvenile court adjudication + }was
entered in the register.
(b) If an appeal is taken, the date the appeal is final in the
Oregon appellate courts.
(4) A one-year filing period shall apply retroactively to
petitions filed by persons whose convictions and appeals became
final before August 5, 1989, and any such petitions must be filed
within one year after November 4, 1993. A person whose
post-conviction petition was dismissed prior to November 4, 1993,
cannot file another post-conviction petition involving the same
case.
(5) The remedy created by ORS 138.510 to 138.680 is available
to persons convicted before May 26, 1959.
(6) In any post-conviction proceeding pending in the courts of
this state on May 26, 1959, the person seeking relief in such
proceedings shall be allowed to amend the action and seek relief
under ORS 138.510 to 138.680. If such person does not choose to
amend the action in this manner, the law existing prior to May
26, 1959, shall govern the case.
{ + (7) As used in ORS 138.510 to 138.680, 'juvenile court
adjudication' means a finding by a juvenile court that a person
is within its jurisdiction under ORS 419C.005. + }
SECTION 6. ORS 138.520 is amended to read:
138.520. The relief which a court may grant or order under ORS
138.510 to 138.680 shall include release, new trial, modification
of sentence, { + setting aside a conviction or a juvenile court
adjudication, + } and such other relief as may be proper and
just. The court may also make supplementary orders to the relief
granted, concerning such matters as rearraignment, retrial,
custody and release on security.
SECTION 7. ORS 138.525 is amended to read:
138.525. (1) The court may, on its own motion or on the motion
of the defendant, enter a judgment denying a meritless petition
brought under ORS 138.510 to 138.680.
(2) As used in this section, 'meritless petition' means one
that, when liberally construed, fails to state a claim upon which
post-conviction { + or post-adjudication + } relief may be
granted.
(3) Notwithstanding ORS 138.650, a judgment dismissing a
meritless petition is not appealable.
(4) A dismissal is without prejudice if a meritless petition is
dismissed without a hearing and the petitioner was not
represented by counsel.
SECTION 8. ORS 138.530 is amended to read:
138.530. (1) Post-conviction { + or post-adjudication + }
relief pursuant to ORS 138.510 to 138.680 shall be granted by the
court when one or more of the following grounds is established by
the petitioner:
(a) A substantial denial in the proceedings resulting in
petitioner's conviction { + or juvenile court adjudication + },
or in the appellate review thereof, of petitioner's rights under
the Constitution of the United States, or under the Constitution
of the State of Oregon, or both, and which denial rendered the
conviction { + or juvenile court adjudication + } void.
(b) Lack of jurisdiction of the court to impose the judgment
rendered upon petitioner's conviction { + or juvenile court
adjudication + }.
(c) Sentence in excess of, or otherwise not in accordance with,
the sentence authorized by law for the crime of which petitioner
was convicted; or unconstitutionality of such sentence.
(d) Unconstitutionality of the statute making criminal the acts
for which petitioner was convicted { + or found to be within the
jurisdiction of the juvenile court + }.
(2) Whenever a person petitions for relief under ORS 138.510 to
138.680, ORS 138.510 to 138.680 shall not be construed to deny
relief where such relief would have been available prior to May
26, 1959, under the writ of habeas corpus, nor shall it be
construed to affect any powers of executive clemency or pardon
provided by law.
(3) ORS 138.510 to 138.680 shall not be construed to limit the
original jurisdiction of the Supreme Court in habeas corpus as
provided in the Constitution of this state.
SECTION 9. ORS 138.540 is amended to read:
138.540. (1) Except as otherwise provided in ORS 138.510 to
138.680, a petition pursuant to ORS 138.510 to 138.680 shall be
the exclusive means, after judgment rendered upon a conviction
for a crime { + or a juvenile court adjudication + }, for
challenging the lawfulness of such judgment or the proceedings
upon which it is based. The remedy created by ORS 138.510 to
138.680 does not replace or supersede the motion for new trial,
the motion in arrest of judgment or direct appellate review of
the sentence or conviction { + or juvenile court
adjudication + }, and a petition for relief under ORS 138.510 to
138.680 shall not be filed while such motions or appellate review
remain available. With the exception of habeas corpus, all common
law post-conviction remedies, including the motion to correct the
record, coram nobis, the motion for relief in the nature of coram
nobis and the motion to vacate the judgment, are abolished in
criminal cases.
(2) When a person restrained by virtue of a judgment upon a
conviction of crime asserts the illegality of the restraint upon
grounds other than the unlawfulness of such judgment or the
proceedings upon which it is based or in the appellate review
thereof, relief shall not be available under ORS 138.510 to
138.680 but shall be sought by habeas corpus or other remedies,
if any, as otherwise provided by law. As used in this subsection,
such other grounds include but are not limited to unlawful
revocation of parole or conditional pardon or completed service
of the sentence imposed.
SECTION 10. ORS 138.550 is amended to read:
138.550. The effect of prior judicial proceedings concerning
the conviction { + or juvenile court adjudication + } of
petitioner
{ - which - } { + that + } is challenged in the petition
shall be as specified in this section and not otherwise:
(1) The failure of petitioner to have sought appellate review
of the conviction { + or juvenile court adjudication + }, or to
have raised matters alleged in the petition at the trial { + or
juvenile court proceeding + } of the petitioner, shall not affect
the availability of relief under ORS 138.510 to 138.680. But no
proceeding under ORS 138.510 to 138.680 shall be pursued while
direct appellate review of the conviction { + or juvenile court
adjudication + } of the petitioner, a motion for new trial, or a
motion in arrest of judgment remains available.
(2) When the petitioner sought and obtained direct appellate
review of the conviction and sentence { + or juvenile court
adjudication + } of the petitioner, no ground for relief may be
asserted by petitioner in a petition for relief under ORS 138.510
to 138.680 unless such ground was not asserted and could not
reasonably have been asserted in the direct appellate review
proceeding. If petitioner was not represented by counsel in the
direct appellate review proceeding, due to lack of funds to
retain such counsel and the failure of the court to appoint
counsel for that proceeding, any ground for relief under ORS
138.510 to 138.680 { - which - } { + that + } was not
specifically decided by the appellate court may be asserted in
the first petition for relief under ORS 138.510 to 138.680,
unless otherwise provided in this section.
(3) All grounds for relief claimed by petitioner in a petition
pursuant to ORS 138.510 to 138.680 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 asserted therein which could not
reasonably have been raised in the original or amended petition.
However, any prior petition or amended petition which was
withdrawn prior to the entry of judgment by leave of the court,
as provided in ORS 138.610, shall have no effect on petitioner's
right to bring a subsequent petition.
(4) Except as otherwise provided in this subsection, no ground
for relief under ORS 138.510 to 138.680 claimed by petitioner may
be asserted when such ground has been asserted in any
post-conviction proceeding prior to May 26, 1959, and relief was
denied by the court, or when such ground could reasonably have
been asserted in the prior proceeding. However, if petitioner was
not represented by counsel in such prior proceeding, any ground
for relief under ORS 138.510 to 138.680 { - which - }
{ + that + } was not specifically decided in the prior
proceedings may be raised in the first petition for relief
pursuant to ORS 138.510 to 138.680. Petitioner's assertion, in a
post-conviction proceeding prior to May 26, 1959, of a ground for
relief under ORS 138.510 to 138.680, and the decision of the
court in such proceeding adverse to the petitioner, shall not
prevent the assertion of the same ground in the first petition
pursuant to ORS 138.510 to 138.680 if the prior adverse decision
was on the ground that no remedy heretofore existing allowed
relief upon the grounds alleged, or if the decision rested upon
the inability of the petitioner to allege and prove matters
contradicting the record of the trial which resulted in the
conviction and sentence of the petitioner.
SECTION 11. ORS 138.560 is amended to read:
138.560. (1) { + (a) + } A proceeding for post-conviction
{ + or post-adjudication + } relief pursuant to ORS 138.510 to
138.680 shall be commenced by filing a petition and two copies
thereof with { + : + }
{ + (A) + } The clerk of the circuit court for the county in
which the petitioner is imprisoned { + ; + } { - or, if the
petitioner is not imprisoned, with - }
{ + (B) + } The clerk of the circuit court for the county in
which the petitioner's conviction and sentence was rendered { + ,
if the petitioner is not imprisoned; or
(C) The clerk of the juvenile court for the county in which the
petitioner's juvenile court adjudication was rendered, if the
petitioner is seeking post-adjudication relief from a finding by
the juvenile court that the petitioner was within the
jurisdiction of the juvenile court + }.
{ + (b) + } Except as otherwise provided in ORS 138.590, the
petitioner shall pay a $25 filing fee at the time of filing a
petition under this section. If the petitioner prevails, the
petitioner shall recover the fee pursuant to the Oregon Rules of
Civil Procedure. The clerk of the court in which the petition is
filed shall enter and file the petition and bring it promptly to
the attention of such court. A copy of the petition need not be
served by petitioner on the defendant, but, in lieu thereof, the
clerk of the court in which the petition is filed shall
immediately forward a copy of the petition to the Attorney
General or other attorney for the defendant named in ORS 138.570.
(2) For the purposes of ORS 138.510 to 138.680, a person
released on parole or conditional pardon shall be deemed to be
imprisoned in the institution from which the person is so
released.
(3) Except when petitioner's conviction was for a misdemeanor,
the release of the petitioner from imprisonment during the
pendency of proceedings instituted pursuant to ORS 138.510 to
138.680 shall not cause the proceedings to become moot. Such
release of petitioner shall not change the venue of the
proceedings out of the circuit court in which they were commenced
and shall not affect the power of such court to transfer the
proceedings as provided in subsection (4) of this section.
(4) Whenever petitioner is imprisoned in a Department of
Corrections institution and the circuit court for the county in
which the petitioner is imprisoned finds that the hearing upon
the petition can be more expeditiously conducted in the county in
which the petitioner was convicted and sentenced, the circuit
court upon its own motion or the motion of a party may order the
petitioner's case to be transferred to the circuit court for the
county in which petitioner's conviction and sentence were
rendered. Such an order shall not be reviewable by any court of
this state.
SECTION 12. ORS 138.570 is amended to read:
138.570. If the petitioner is imprisoned, the petition shall
name as defendant the official charged with the confinement of
petitioner. If the petitioner is not imprisoned, the defendant
shall be the State of Oregon. Whenever the defendant is the
superintendent of a Department of Corrections institution, the
Attorney General shall act as the superintendent's attorney in
the proceedings. Whenever the defendant is some other official
charged with the confinement of petitioner, the district attorney
of the county wherein the petitioner is imprisoned shall be the
attorney for the defendant. Whenever { + the + } petitioner is
not imprisoned, counsel for the State of Oregon as defendant
shall be the district attorney of the county in which
{ + the + } petitioner's conviction and sentence were
rendered { + or in which the petitioner's juvenile court
adjudication was rendered + }. Whenever the petitioner is
released from imprisonment during the pendency of any proceedings
pursuant to ORS 138.510 to 138.680, the State of Oregon shall be
substituted as defendant. Upon such substitution, counsel for the
original defendant shall continue to serve as counsel for the
substituted defendant.
SECTION 13. ORS 138.580 is amended to read:
138.580. The petition shall be certified by the petitioner.
Facts within the personal knowledge of the petitioner and the
authenticity of all documents and exhibits included in or
attached to the petition must be sworn to affirmatively as true
and correct. The Supreme Court, by rule, may prescribe the form
of the certification. The petition shall identify the proceedings
in which petitioner was convicted { + or found to be within the
jurisdiction of the juvenile court + } and any appellate
proceedings thereon, give the date of entry of judgment and
sentence complained of and identify any previous post-conviction
{ + or post-adjudication + } proceedings that the petitioner has
undertaken to secure a post-conviction { + or
post-adjudication + } remedy, whether under ORS 138.510 to
138.680 or otherwise, and the disposition thereof. The petition
shall set forth specifically the grounds upon which relief is
claimed, and shall state clearly the relief desired. All facts
within the personal knowledge of the petitioner shall be set
forth separately from the other allegations of fact and shall be
certified as heretofore provided in this section. Affidavits,
records or other documentary evidence supporting the allegations
of the petition shall be attached to the petition. Argument,
citations and discussion of authorities shall be omitted from the
petition but may be submitted in a separate memorandum of law.
SECTION 14. ORS 138.590 is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses
of a proceeding pursuant to ORS 138.510 to 138.680 or to employ
suitable counsel possessing skills and experience commensurate
with the nature of the conviction { + or juvenile court
adjudication + } and { + the + } complexity of the case for such
a proceeding may proceed as an indigent person pursuant to this
section upon order of the circuit court in which the petition is
filed.
(2) If the petitioner wishes to proceed as an indigent person,
the person shall file with the petition an affidavit stating
inability to pay the expenses of a proceeding pursuant to ORS
138.510 to 138.680, including, but not limited to, the filing fee
required by ORS 138.560, or to employ suitable counsel for such a
proceeding. The affidavit shall contain a brief statement of the
petitioner's assets and liabilities and income during the
previous year. If the circuit court is satisfied that the
petitioner is unable to pay such expenses or to employ suitable
counsel, it shall order that the petitioner proceed as an
indigent person. If the court finds that a petitioner who has
been sentenced to death is not competent to decide whether to
accept or reject the appointment of counsel, the court shall
appoint counsel to represent the petitioner. However, when the
Circuit Court for Marion County orders petitioner's case
transferred to another circuit court as provided in ORS 138.560
(4), the matter of petitioner's proceeding as an indigent person
shall be determined by the latter court.
(3) If a petitioner who has been sentenced to death qualifies
for the appointment of counsel under this section but rejects the
appointment, the court shall determine, after a hearing if
necessary, whether the petitioner rejected the offer of counsel
and made the decision with an understanding of its legal
consequences. The court shall make appropriate findings on the
record.
(4) In the order to proceed as an indigent person, the circuit
court shall appoint suitable counsel to represent petitioner.
Counsel so appointed shall represent petitioner throughout the
proceedings in the circuit court.
(5) If counsel appointed by the circuit court determines that
the petition as filed by petitioner is defective, either in form
or in substance, or both, counsel may move to amend the petition
within 15 days following counsel's appointment, or within such
further period as the court may allow. Such amendment shall be
permitted as of right at any time during this period. If
appointed counsel believes that the original petition cannot be
construed to state a ground for relief under ORS 138.510 to
138.680, and cannot be amended to state such a ground, counsel
shall, in lieu of moving to amend the petition, inform the
petitioner and notify the circuit court of such belief by filing
an affidavit stating such belief and the reasons therefor with
the clerk of the circuit court. This affidavit shall not
constitute a ground for denying the petition prior to a hearing
upon its sufficiency, but the circuit court may consider such
affidavit in deciding upon the sufficiency of the petition at the
hearing.
(6) When a petitioner has been ordered to proceed as an
indigent person, the expenses which are necessary for the
proceedings upon the petition in the circuit court and the
compensation to appointed counsel for petitioner as provided in
this subsection shall be paid by the state from funds available
for the purpose. At the conclusion of proceedings on a petition
pursuant to ORS 138.510 to 138.680, the circuit court shall
determine and allow, as provided in ORS 135.055, the amount of
expenses of petitioner and compensation for the services of
appointed counsel in the proceedings in the circuit court. The
expenses and compensation determined by the circuit court shall
be certified to and paid by the state.
(7) If appointed counsel is under contract to provide services
for the proceeding pursuant to ORS 151.460, the court shall not
allow compensation for that appointed counsel. In all other
cases, counsel shall be compensated as provided in this section.
(8)(a) When a petitioner has been ordered to proceed as an
indigent person, all court fees in the circuit court, except for
the filing fee required by ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without
payment of the fee required by ORS 138.560 due to inability to
pay, the fee is not waived but may be drawn from, or charged
against, the petitioner's trust account if the petitioner is an
inmate in a correctional facility.
(9) Notwithstanding any other provision of this chapter, a
court may not appoint as counsel for a petitioner who has been
sentenced to death a counsel who previously represented the
petitioner at trial or on automatic and direct review in the case
resulting in the death sentence unless the petitioner and the
counsel expressly request continued representation.
SECTION 15. ORS 138.630 is amended to read:
138.630. In a proceeding pursuant to ORS 138.510 to 138.680,
events occurring at the trial { + or juvenile court
proceeding + } of { + the + } petitioner may be shown by a duly
authenticated transcript, record or portion thereof. If
{ - such - } { + the + } transcript or record cannot be
produced, the affidavit of the judge who presided at the trial
{ + or juvenile court proceeding + } setting forth the facts
occurring at the trial { + or juvenile court proceeding + }
shall be admissible in evidence when relevant. When necessary to
establish any ground for relief specified in ORS 138.530, the
petitioner may allege and prove matters in contradiction of the
record of the trial { + or juvenile court proceeding + } of the
petitioner. When the record is so contradicted, the defendant may
introduce in evidence any evidence
{ - which - } { + that + } was admitted in evidence at the
trial { + or juvenile court proceeding + } to support the
contradicted matter and may call witnesses whose testimony at
{ - such - } { + the + } trial { + or juvenile court
proceeding + } supported the contradicted matter. Whenever
{ - such - } { + the + } evidence or { - such - }
{ + the + } witnesses cannot be produced by defendant for any
reason which is sufficient in the opinion of the court,
{ - such - } { + the + } parts of the duly authenticated
record of the trial
{ - as - } { + or juvenile court proceeding that + } support
the contradicted matter may be introduced in evidence by the
defendant. A duly authenticated record of the testimony of any
witness at the trial { + or juvenile court proceeding + } may
be introduced in evidence to impeach the credibility of any
testimony by the same witness in the hearing upon the petition.
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