72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 573
 
                         Senate Bill 45
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Joint Interim Committee on
  Judiciary for Oregon Judicial Department)
 
 
                             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.
 
  Provides that court in which post-conviction relief proceeding
is pending may determine whether to transfer venue when
petitioner is transferred from one correctional institution to
another. Allows counsel for petitioner and witnesses to appear by
electronic means at post-conviction proceedings.
  Declares emergency, effective July 1, 2003.
 
                        A BILL FOR AN ACT
Relating to post-conviction relief; creating new provisions;
  amending ORS 138.560, 138.590 and 138.620; and declaring an
  emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 138.560 is amended to read:
  138.560. (1) A proceeding for post-conviction relief pursuant
to ORS 138.510 to 138.680 shall be commenced by filing a petition
and two copies thereof with the clerk of the circuit court for
the county in which the petitioner is imprisoned or, if the
petitioner is not imprisoned, with the clerk of the circuit court
for the county in which the petitioner's conviction and sentence
was rendered. 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  { + the + } 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 - }
 { +  The court's order is not + } reviewable by any court of
this state.
   { +  (5) When a petitioner who is imprisoned in a Department
of Corrections institution is transferred to another Department
of Corrections institution, the circuit court in which a
post-conviction relief proceeding is pending may deny a motion
for a change of venue to the county where the petitioner is
transferred. The court's order is not reviewable by any court of
this state. + }
  SECTION 2.  { + Section 3 of this 2003 Act is added to and made
a part of ORS 138.510 to 138.680. + }
  SECTION 3.  { + For the purpose of a court appearance under ORS
138.510 to 138.680, the court may approve the appearance of the
parties, counsel for the parties or witnesses by telephone or
other communication device approved by the court. However, the
court may not approve the appearance of the petitioner or counsel
for the petitioner by telephone or other communication device
unless the facilities used enable the petitioner to consult
privately with the petitioner's counsel during the
proceedings. + }
  SECTION 4. ORS 138.620 is amended to read:
  138.620. (1) After the response of the defendant to the
petition, the court shall proceed to a hearing on the issues
raised. If the defendant's response is by demurrer or motion
raising solely issues of law, the circuit court need not order
that petitioner be present at such hearing,   { - so - }
 { + as + } long as petitioner is represented at the hearing by
counsel. At the hearing upon issues raised by any other response,
the circuit court shall order that petitioner be present.
Whenever the court orders that petitioner be present at the
hearing, the court may order that petitioner appear   { - via
telephonic or other means approved by the court - }  { +  by
telephone or other communication device as provided in section 3
of this 2003 Act + } rather than in person.
  (2) If the petition states a ground for relief, the court shall
decide the issues raised and may receive proof by affidavits,
depositions, oral testimony or other competent evidence.
 { - Oral testimony may be taken via telephonic or other means
approved by the court. - }  The burden of proof of facts alleged
in the petition shall be upon the petitioner to establish such
facts by a preponderance of the evidence.
  SECTION 5. 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 and 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 - }  { +  a + } 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 6. ORS 138.590, as amended by section 30, chapter 962,
Oregon Laws 2001, 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 and complexity of the case for
the proceeding may proceed as a financially eligible 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 a financially
eligible 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 a financially eligible 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 - }  { +  a + } 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 a financially eligible 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 a financially eligible 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 a
further period as the court may allow. The 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 a ground for relief,
counsel shall, in lieu of moving to amend the petition, inform
the petitioner and notify the circuit court of counsel's belief
by filing an affidavit stating the belief and the reasons
therefor with the clerk of the circuit court. This affidavit does
not constitute a ground for denying the petition prior to a
hearing upon its sufficiency, but the circuit court may consider
the affidavit in deciding upon the sufficiency of the petition at
the hearing.
  (6) When a petitioner has been ordered to proceed as a
financially eligible 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 public defense services
executive director from funds available for the purpose. At the
conclusion of proceedings on a petition pursuant to ORS 138.510
to 138.680, the public defense services executive director shall
determine and pay, as provided by rules of the Public Defense
Services Commission, the amount of expenses of petitioner and
compensation for the services of appointed counsel in the
proceedings in the circuit court.
  (7)(a) When a petitioner has been authorized to proceed as a
financially eligible 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.
  (8) 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 7.  { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect July 1,
2003. + }
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