Strasser v. State of Oregon

238

Argued and submitted January 5; decision of Court of Appeals reversed,

order of circuit court reversed, and case remanded to circuit court for further

proceedings June 24, 2021

RONALD KENNETH STRASSER,

Petitioner on Review,

v.

STATE OF OREGON,

Respondent on Review.

(CC 17CV19138) (CA A166365) (SC S067541)

489 P3d 1025

Petitioner, whose direct appeal from a judgment of conviction was dismissed

by the Court of Appeals as untimely filed, argued in a subsequent post-conviction

proceeding that appellate counsel was constitutionally inadequate in failing to

request leave to file a late notice of appeal within the applicable 90-day window

and that petitioner therefore was entitled to a delayed direct appeal. Petitioner

also argued in the post-conviction proceeding that, by appointing counsel only

four days before the deadline for filing a motion for a late appeal, the Court of

Appeals had effectively failed to appoint appellate counsel and that, therefore,

the ordinary statutory bar on raising claims in a post-conviction proceeding that

could have been raised on direct appeal was inapplicable and the post-conviction

court could decide petitioner’s claims alleging substantial denials of his consti-

tutional rights at trial. The post-conviction court rejected both arguments and

denied relief and the Court of Appeals affirmed. Held: The post-conviction court

did not err in holding that counsel’s failure to meet the deadline for filing a motion

for late appeal did not constitute ineffective assistance of counsel and that peti-

tioner therefore was not entitled to a late appeal; however, it did err in holding

that petitioner’s claims of substantial denials of his constitutional rights at trial

were barred in post-conviction because those claims could have been raised in an

appeal, when petitioner had not obtained an appeal.

The decision of the Court of Appeals is reversed. The order of the circuit court

is reversed, and the case is remanded to the circuit court for further proceedings.

On review from the Court of Appeals.*

Ryan T. O’Connor, O’Connor Weber LLC, Portland, argued

the cause and filed the briefs for petitioner on review.

Paul L. Smith, Deputy Solicitor General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

______________

* On appeal from Clackamas County Circuit Court, Susie L. Norby, Judge.

301 Or App 637, 454 P3d 861 (2019).

Cite as 368 Or 238 (2021) 239

Before Walters, Chief Justice, and Nakamoto, Flynn,

Duncan, Nelson, and Garrett, Justices, and Landau, Senior

Judge, Justice pro tempore.**

NELSON, J.

The decision of the Court of Appeals is reversed. The order

of the circuit court is reversed, and the case is remanded to

the circuit court for further proceedings.

______________

** Balmer, J., did not participate in the consideration or decision of this case.

240 Strasser v. State of Oregon

NELSON, J.

Petitioner, whose direct appeal from a judgment of

conviction was dismissed by the Court of Appeals as untimely

filed, argued in a subsequent post-conviction proceeding

that appellate counsel was constitutionally inadequate in

failing to request leave to file a late notice of appeal within

the applicable 90-day window—although counsel had only

been appointed four days before that window closed—and

that, therefore, petitioner was entitled to a delayed direct

appeal. Petitioner argued, alternatively, that, insofar as the

Court of Appeals had not acted on his request for appoint-

ment of appellate counsel until four days before the 90-day

deadline for filing a request for late appeal, it had effectively

failed to appoint appellate counsel and, therefore, the ordi-

nary bar on bringing claims in a post-conviction proceeding

that could have been raised on direct appeal was inapplica-

ble. See ORS 138.550(2) (petitioner for post-conviction relief

may assert ground for relief that could reasonably have been

asserted in direct appeal if petitioner was unrepresented

on appeal due to lack of funds to retain counsel and fail-

ure of court to appoint counsel). The post-conviction court

rejected both arguments and denied post-conviction relief,

and the Court of Appeals affirmed without opinion. On

review, we agree with the post-conviction court’s determi-

nation that appellate counsel was not constitutionally inad-

equate or ineffective in failing to meet the 90-day deadline

in these circumstances. We conclude, however, that the post-

conviction court’s determination that petitioner was barred

from raising what could have been direct appeal claims in

post-conviction was based on an incorrect assumption about

the applicable statute, and that it erred in declining to con-

sider those claims. Accordingly, we reverse and remand to

the post-conviction court to consider and decide defendant’s

claims of constitutional error by the trial court, without

regard to the fact that they could have been raised in an

appeal.

I. BACKGROUND

We draw the following facts from the records of the

proceedings in the trial court and the Court of Appeals.

Early in 2016, petitioner was charged in Clackamas County

Cite as 368 Or 238 (2021) 241

Circuit Court with criminal driving while suspended, ORS

811.182(4), and was appointed counsel to represent him at

trial. However, that first court-appointed lawyer was per-

mitted to withdraw, and a second court-appointed lawyer

eventually moved to withdraw due to an irreparable break-

down in communications. While considering the second law-

yer’s motion, the trial court asked petitioner if he wished

to hire a lawyer on his own or to represent himself at trial.

After receiving a somewhat confusing response from peti-

tioner,1 the court allowed the second lawyer to withdraw

and told petitioner to appear for trial on August 10, 2016.

Petitioner appeared for trial on the date scheduled

but told the court that he was unprepared, that he did not

accept the court’s jurisdiction, that his “authorized represen-

tative” was not present, that he suffered from post-traumatic

stress disorder and was “in no shape or capacity to enter into

a trial,” and that he was not asking for a jury trial and did

not “wish to participate in a jury trial.” The trial court found

that petitioner had waived his right to a jury trial and pro-

ceeded to a bench trial. At that trial, petitioner did not pres-

ent an opening or closing argument, did not cross-examine

the state’s sole witness, and did not present any evidence

of his own. In the end, the court found petitioner guilty as

charged and imposed a jail sentence. After announcing the

conviction and sentence, the trial court advised petitioner

that, if he wished to appeal, he would have to file a writ-

ten notice of appeal “within 30 days of today’s date.” The

court also advised petitioner in general terms that he could

apply for court-appointed counsel to assist with an appeal.

Petitioner refused to sign a form acknowledging that he

had been advised of and understood his appeal rights. The

trial court entered the judgment of conviction and sentence,

along with the unsigned appeal rights form, on August 10,

2016.

1

Petitioner asked the trial court if there was a requirement that he hire a

lawyer. The trial court responded that he could proceed without a lawyer if he

wished. After petitioner suggested that he would handle the matter on his own,

the trial court asked specifically whether he would like to waive his right to an

attorney. Petitioner responded, “I reserve all my rights without prejudice, waiv-

ing none”—a phrase that he had repeated a number of times in the course of the

proceeding. There was no conversation at the time about the risks involved in

self-representation.

242 Strasser v. State of Oregon

On September 21, 2016, the Court of Appeals

received a document that it later deemed to be petitioner’s

notice of appeal in the matter.2 That date was outside the

30-day filing window provided by statute. ORS 138.071(1)

(“Except as provided in this section, a notice of appeal must

be served and filed not later than 30 days after the judg-

ment or order appealed from was entered in the register.”).

That notice of appeal, which petitioner had filed without rep-

resentation, consisted of petitioner’s handwritten additions

to a blank form copied from the Oregon Rules of Appellate

Procedure. On the notice itself, petitioner had written

“Not an attorney, not pro se; not representing myself,” and

on an attached certificate of filing, he had written “I wish

the Public Defense Service Commission usually the Legal

Services Division of the Office of Public Defense Services to

perform all the technical legal work for me.” At some point,

the Court of Appeals recognized the latter notation as a

written request for court-appointed counsel and deemed it

to have been filed on September 21, 2016.

The Court of Appeals took no action with respect to

the notice of appeal and request for court-appointed coun-

sel for six weeks after the September 21, 2016, filing date.

Most notably, the court did not appoint counsel. Neither

did it send petitioner a letter acknowledging receipt of the

notice of appeal and setting out deficiencies and deadlines

for curing those deficiencies, as it generally does when it

receives a notice of appeal. Finally, on November 4, 2016 (a

Friday), the court issued an order acknowledging that peti-

tioner had moved for appointment of counsel to represent

him in his appeal and appointing the Chief Defender at the

Office of Public Defense Services, Ernest Lannet, for that

2

The document that the Court of Appeals entered in the record as peti-

tioner’s notice of appeal was received by the court on October 4, 2016. It contained

a handwritten notation: “Initially mailed copy of Judgment with Notice of Appeal

mailed 8th of August 2016 by witness from CCJ.” The notation seemingly referred

to a document that the Court of Appeals had received on September 21, 2016. The

document was a copy of the judgment the trial court had issued on August 10,

2016, to which petitioner had added various handwritten comments and nota-

tions, including a heading: “Notice: For purpose of your appeal anyhow.” Other

notations on the document suggest that it had been produced on September 8,

2016. Apparently based on its receipt of that document, the Court of Appeals

deemed petitioner’s notice of appeal and motion for appointment of counsel as

having been filed on September 21, 2016.

Cite as 368 Or 238 (2021) 243

purpose. Four days later, on November 8, 2016, the court

sent Mr. Lannet an acknowledgment and notice of deficiency

that stated that petitioner’s Notice of Appeal had been filed

on September 21, 2016, that it was deficient in that (among

other things) it did not include certificates of service on nec-

essary recipients, ORAP 2.05(10), that those deficiencies

must be corrected within 14 days, that the notice of appeal

was not timely filed, and that a motion to file a late appeal

as provided in ORS 138.071(5)3 must be filed within 90 days

of the entry of the judgment. As noted above, the judgment

was entered on August 10, 2016. Ninety days from that

August 10, 2016, date was November 8, 2016—the same

day that the court issued the notice of deficiency and four

days (two business days) after it issued its order appointing

Mr. Lannet to represent petitioner in his appeal.

On November 22, 2016, the Court of Appeals

received three documents from the Office of Public Defense

Services lawyer to whom Mr. Lannet had delegated peti-

tioner’s appeal: (1) a notice that the lawyer would be rep-

resenting petitioner in the appeal; (2) a corrected notice of

appeal that resolved the deficiencies identified in the Court

of Appeals’ November 8, 2016, deficiency notice, including

the failure to serve the required recipients; and (3) a motion

for a late appeal asserting that petitioner was not personally

responsible for the failure to file the notice within 30 days

of the entry of judgment, that he had filed a pro se notice

of appeal before requesting appointment of counsel, and

3

ORS 138.071(5) provides, in part:

“(a) Upon motion of a defendant, the Court of Appeals shall grant the

defendant leave to file a notice of appeal after the time limits described in

subsections (1) to (4) of this section if:

“(A) The defendant, by clear and convincing evidence, shows that the

failure to file a timely notice of appeal is not attributable to the defendant

personally; and

“(B) The defendant shows a colorable claim of error in the proceeding

from which the appeal is taken.

“* * * * *

“(c) The request for leave to file a notice of appeal after the time limits

prescribed in subsections (1) to (3) of this section must be filed no later than

90 days after entry of the order or judgment being appealed. * * * A request

for leave under this subsection must be accompanied by the notice of appeal,

may be filed by mail and is deemed filed on the date of mailing if the request

is mailed as provided in ORS 19.260.”

244 Strasser v. State of Oregon

that he sought leave to file a late notice of appeal to cor-

rect defects in the original notice. On December 6, 2016, the

Court of Appeals issued an order acknowledging and grant-

ing the motion for late appeal.

However, a few weeks later, the court withdrew that

order and issued a new order dismissing petitioner’s appeal

as untimely. In the order of dismissal, the court explained

that (1) the motion for late appeal failed to make a show-

ing of a colorable claim of error in the proceeding from

which the appeal was taken, as required by ORS 138.071

(5)(a)(B); (2) the motion was not filed within the 90-day time

period provided in ORS 138.071(5)(c); (3) petitioner’s failure

to serve the notice of appeal on the county district attor-

ney was not corrected within that 90-day time period; and

(4) because filing of the motion and notice and service on the

district attorney within the 90-day window were jurisdic-

tional requirements, the appeal must be dismissed. While

the Court of Appeals thus dismissed petitioner’s appeal as

untimely filed, it expressly stated in its order of dismissal

that it was doing so “without prejudice to petitioner seeking

post-conviction relief.”

Petitioner thereafter filed the present petition for

post-conviction relief, alleging three claims, all of which

were claims of a “substantial denial” of petitioners consti-

tutional rights at trial or on appeal and, thus, were within

the category of claims for which relief may be granted in

post-conviction, ORS 138.530(1)(a).4 In the first claim, peti-

tioner alleged that he had not knowingly, intelligently,

and voluntarily waived his right to trial counsel and that,

4

Under ORS 138.530(1), post-conviction relief is available only for certain

kinds of claims:

“(a) A substantial denial in the proceedings resulting in petitioner’s con-

viction, 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 void.

“(b) Lack of jurisdiction of the court to impose the judgment rendered

upon petitioner’s conviction.

“(c) Sentence in excess of, or otherwise not in accordance with, the sen-

tence 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.”

Cite as 368 Or 238 (2021) 245

in the absence of such a waiver, granting counsel’s motion

to withdraw and allowing petitioner to proceed without

counsel—as the trial court had done—violated defendant’s

Due Process rights under the Fourteenth Amendment to the

United States Constitution and his right to counsel under

the Sixth Amendment and Article I, section 11, of the Oregon

Constitution. In his second claim of error, petitioner alleged

that he had not waived his right to a jury trial in writing

and that, by proceeding to a bench trial without such a writ-

ten waiver, the trial court violated his right to a jury trial

under the Sixth and Fourteenth Amendment and Article I,

section 11. Petitioner additionally alleged, with respect to

each of the foregoing claims of constitutional error, that the

claim could not reasonably have been raised at trial or on

direct appeal, given that petitioner had been denied assis-

tance of counsel at trial and adequate assistance of counsel

on appeal and that the Court of Appeals’ belated appoint-

ment of appellate counsel left counsel with insufficient time

to meet the late appeal requirements of ORS 138.071(5).

In his third claim for post-conviction relief, peti-

tioner alleged that, regardless of the fact that appellate coun-

sel was appointed only four days before the 90-day deadline

in ORS 138.071(5)(c) for filing a late notice of appeal, counsel

was constitutionally ineffective and inadequate in failing

to meet that deadline. And, petitioner added, there was a

substantial probability that that ineffective performance

resulted in prejudice to petitioner, given that the trial court

had substantially erred in the ways alleged in petitioner’s

first and second post-conviction claims and that petitioner

likely would have prevailed on those issues on direct appeal

if counsel’s ineffective performance had not resulted in dis-

missal of the appeal. Petitioner asserted, finally, that, given

that counsel’s ineffectiveness had resulted in the dismissal

of his appeal, the post-conviction court could and should

grant him a delayed direct appeal as a remedy.5

5

In Shipman v. Gladden, 253 Or 192, 203-04, 453 P2d 921 (1969), this court

held that a delayed appeal was an appropriate remedy when a criminal defen-

dant’s right to appeal was lost through counsel’s culpable negligence, and that a

post-conviction court was authorized under ORS 138.520 to grant that remedy.

A delayed direct appeal would allow review of any and all trial court errors that

petitioner wished to assert.

246 Strasser v. State of Oregon

The post-conviction court rejected all three claims

and declined to grant the relief that petitioner had

requested—either a delayed direct appeal, based on a

determination that appellate counsel’s performance had

been inadequate, or reversal or vacation of the trial court’s

judgment and remand to that court for retrial, based on a

determination that there had been a substantial denial of

petitioner’s constitutional rights at trial. With respect to

the third claim, alleging inadequate assistance of appellate

counsel, the court explained:

“I cannot find that a failure by appellate counsel to cor-

rect a jurisdictional filing error in a notice of appeal within

four days, * * * two of which * * * were weekend days, * * *

falls below an objective standard of reasonableness in

representation.”

As to the first and second claims, the post-conviction

court concluded that they could reasonably have been raised

on direct appeal and, therefore, under ORS 138.550(2), were

barred in post-conviction. The court rejected petitioner’s

argument that the claims fell within an exception to that

bar, which applies to post-conviction petitioners who were

“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 proceed-

ing.” ORS 138.550(2). While petitioner had argued that, as

a practical matter, he was not represented by counsel for

purposes of requesting a late appeal, due to the Court of

Appeals’ failure to appoint counsel at a point that would

allow counsel sufficient time to assist in that task, the post-

conviction court focused on the literal terms of the stat-

ute and concluded that only a complete failure to appoint

counsel—which had not occurred in petitioner’s case—would

trigger the exception.

Petitioner appealed the post-conviction court’s rul-

ing and the Court of Appeals affirmed without opinion.

Petitioner sought review by this court, and we allowed his

petition to consider the two potential paths to relief that

petitioner has proposed: (1) a determination that appellate

counsel’s ineffective performance had resulted in the loss

of petitioner’s appeal (as petitioner had alleged in his third

Cite as 368 Or 238 (2021) 247

post-conviction claim) and a remand to the Court of Appeals

with instructions to grant petitioner a delayed direct appeal

as a remedy for that loss; and (2) vacation or reversal of

petitioner’s conviction and remand for retrial based on a

determination that, at trial, there had been a substantial

denial of petitioner’s constitutional rights (in one or both of

the ways that petitioner had alleged in his first and second

post-conviction claims).

II. INADEQUATE ASSISTANCE OF

APPELLATE COUNSEL

A. Petitioner’s Inadequate Assistance Theory

Petitioner first contends that the post-conviction

court erred in rejecting his claim of constitutionally inade-

quate assistance of appellate counsel. That claim relies on

the right to appellate counsel as guaranteed in Article I,

section 11, of the Oregon Constitution and the Sixth and

Fourteenth Amendments to the United States Constitution,6

and on the fact that those rights have been interpreted to

include a right to adequate and effective appellate coun-

sel. Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987);

Evitts v. Lucey, 469 US 387, 396-97, 105 S Ct 830, 83 L Ed

2d 821 (1985). In general, to prevail on a claim of ineffective

assistance of counsel under either constitutional guarantee,

a defendant must show that (1) counsel’s performance fell

6

The Sixth Amendment guarantees assistance of counsel “in all crimi-

nal prosecutions,” i.e., at the trial level. The Due Process and Equal Protection

clauses of the Fourteenth Amendment have been deemed to provide a similar

guarantee of assistance of counsel in any criminal appeal that is provided as

of right. Douglas v. California, 372 US 353, 355-58, 83 S Ct 814, 9 L Ed 2d 811

(1963).

In many ineffective assistance cases under the United States Constitution,

counsel’s performance with respect to the particular task of filing a notice of

appeal is treated as a Sixth Amendment issue—on the theory that, after a con-

viction, determining a defendant’s wishes and initiating any desired appeal is

part of the assistance of trial counsel that the Sixth Amendment guarantees.

Of course, that theory is not applicable when, as here, the defendant was not

represented by counsel at trial. Instead, the Fourteenth Amendment applies. But

whether it is based on the Sixth Amendment or the Fourteenth Amendment,

the constitutional duty to provide effective assistance of counsel on appeal is the

same, and the judicial holdings under the Sixth Amendment are also applicable

to right to counsel issues under the Fourteenth Amendment. Evitts v. Lucey, 469

US 387, 396-97, 105 S Ct 830, 83 L Ed 2d 821 (1985) (Fourteenth Amendment

right is a right to effective assistance of counsel on appeal to the same extent that

the Sixth Amendment right is a right to effective assistance of counsel at trial).

248 Strasser v. State of Oregon

below an objective standard of reasonableness, i.e., he or

she failed to exercise reasonable professional skill and judg-

ment; and (2) counsel’s deficient performance was prejudi-

cial to the defense. Garza v. Idaho, ___ US ___, ___, 139 S Ct

738, 744, 203 L Ed 2d 77 (2019) (Sixth Amendment); Farmer

v. Premo, 363 Or 679, 690, 427 P3d 170 (2018) (Article I, sec-

tion 11). Prejudice in the inadequate-assistance-of-counsel

context means showing that counsel’s deficient performance

had some tendency to affect the result. Krummacher v.

Gierloff, 290 Or 867, 883, 627 P2d 458 (1981). If a petitioner

establishes a denial of his or her right to adequate and effec-

tive counsel in accordance with the foregoing standard, the

post-conviction court may order a new trial or “such other

relief as may be proper and just.” ORS 138.520.

Here, petitioner’s claim is that court-appointed

appellate counsel was constitutionally inadequate and inef-

fective in failing to meet the 90-day deadline for request-

ing leave to file late appeal, which resulted in the dismissal

of his direct appeal. With respect to the application of the

prejudice prong of the ineffective assistance analysis to that

claim, petitioner relies heavily on an idea that has been dis-

cussed and applied only in the context of the federal right to

counsel—that a lawyer’s ineffectiveness may be presumed to

be prejudicial if it results in his or her client being deprived

of an appeal. Garza, ___ US at ___, 139 S Ct at 746-48.

Petitioner asks this court to read that same presumption

of prejudice into the right-to-counsel guarantee of Article I,

section 11.

We begin by setting out defendant’s entire inade-

quate assistance of counsel argument, including the parts

that rely on Sixth Amendment cases that have no coun-

terparts under Article I, section 11. Petitioner first asserts

that, as a matter of both statutory and constitutional law, he

had a right to appointed counsel to assist him in obtaining

a late appeal. The statutory provisions on which petitioner

relies are ORS 138.500(1), which provides that if a criminal

defendant makes a written request for appellate counsel to

the trial court whose judgment he or she wishes to appeal

and the court has previously determined that the defendant

is financially eligible, the trial court “shall” appoint coun-

sel, and ORS 138.500(2)(b), which provides that the Court of

Cite as 368 Or 238 (2021) 249

Appeals has concurrent authority to appoint counsel—and

presumably is under a similar imperative—once a notice of

appeal has been filed. Applying those statutory provisions

to the circumstances of his own appeal, petitioner argues

that the Court of Appeals was obligated to appoint coun-

sel to assist him once it received his September 21, 2016,

Notice of Appeal with its handwritten request for appointed

counsel—since it would have been able to ascertain from the

trial court’s earlier appointment of counsel that petitioner

was financially eligible for court-appointed appellate coun-

sel. Petitioner also contends that, as a matter of constitutional

law, it was incumbent on the Court of Appeals to appoint

counsel to assist petitioner in the complicated process of

requesting a late appeal, once it received his September 21,

2016, Notice of Appeal, a document that would have con-

veyed to the court that petitioner wished to appeal and was

indigent. Petitioner relies on two cases decided under the

Fourteenth Amendment, Swenson v. Bosler, 386 US 258, 87

S Ct 996, 18 L Ed 2d 33 (1987), and Halbert v. Michigan, 545

US 605, 125 S Ct 2582, 162 L Ed 2d 552 (2005).7

Next, petitioner reminds us that a right to the assis-

tance of counsel in requesting a late appeal and filing a late

notice of appeal would include a right to effective assistance

of counsel at that stage. He insists that, in his case, the right

to effective counsel was violated when appointed counsel

failed to file a request for a late appeal and a corrected notice

of appeal before the statutory 90-day deadline, resulting in

7

In Swenson, the United States Supreme Court rejected an argument by

the State of Missouri that a convicted defendant whose indigency and desire to

appeal were manifest had waived his Fourteenth Amendment right to appoint-

ment of appellate counsel by failing to specifically request such appointment.

386 US at 260. In Halbert, the Supreme Court invalidated a Michigan procedure

that required persons who sought to appeal a conviction that resulted from a

guilty plea to first seek leave to appeal from the appeals court, but left it to the

court’s discretion, in any given case, whether to grant a request for appointment

of counsel to assist in seeking such leave. The Halbert Court held that, given the

difficulty of navigating the procedure for seeking leave to appeal without counsel,

allowing courts to decline to appoint counsel to assist with the procedure put indi-

gent defendants at a disadvantage in obtaining first-tier review of trial errors,

thereby violating the Fourteenth Amendment. 545 US at 619-24. Petitioner sug-

gests that requirements for obtaining a late appeal are similarly difficult to nav-

igate without counsel and that, in consequence, the Court of Appeals was obli-

gated to appoint counsel to assist in that process once petitioner’s indigency and

desire to appeal became evident—through petitioner’s September 21, 2016, filing.

250 Strasser v. State of Oregon

the loss of his appeal. Petitioner observes, first, that when

counsel is directly tasked with appealing his or her client’s

criminal conviction and fails to timely file a notice of appeal,

counsel’s performance is ineffective as a matter of law.8

Petitioner then contends that, at least under the Sixth and

Fourteenth Amendments, a showing of that kind of ineffec-

tiveness, i.e., failure to file an appeal that the client wishes,

is sufficient in itself to establish a violation of the constitu-

tional right to assistance of counsel, without any additional

showing that an appeal would likely have succeeded and

that counsel’s ineffective performance therefore was preju-

dicial to the client’s defense.9 And, while acknowledging that

this court has not expressly adopted a similar presumption

of prejudice in the ineffective-assistance-of-counsel context

under Article I, section 11, petitioner notes that this court

has stated, with respect to trial and appellate error in gen-

eral, that the showing that is needed to satisfy the prejudice

requirement will vary depending on the nature of the error.

Ryan v. Palmateer, 338 Or 278, 297, 108 P3d 1127, cert den,

546 US 874 (2005). Petitioner suggests that, under that gen-

eral rule, when counsel’s ineffective performance deprives

the defendant of an appeal, the loss of the appeal is suffi-

ciently prejudicial, in and of itself, that there should be no

requirement of an additional showing that the ineffective-

ness had a tendency to affect the ultimate outcome.

Perhaps recognizing that the circumstances sur-

rounding counsel’s failure to timely file a late appeal in his

case are not directly comparable to those in the various

cases that he has cited in support of his theories, petitioner

turns to an argument that more specifically addresses why

his appointed counsel should be deemed to have provided

8

Petitioner relies on cases decided under the Sixth and Fourteenth

Amendment—Shipman, 253 Or 192; Welch v. Gladden, 253 Or 228, 453 P2d 907

(1969); and Garza, ___ US ___, 139 S Ct 738—in which trial counsel failed to file

a timely appeal for a client who had been convicted and sentenced. In all three of

those cases, the essential takeaway is the same: Counsel’s performance is ineffec-

tive and deficient if he or she fails to timely file a notice of appeal after the client

has requested that he or she do so—regardless of counsel’s own assessment of the

potential merits of such an appeal.

9

That, of course, is an exception to the usual rule, cited above, 368 Or at

247-48, that to prevail on a claim of ineffective assistance of counsel, a defendant

must show not only that counsel’s performance was objectively ineffective but

also that the performance was prejudicial to the defense.

Cite as 368 Or 238 (2021) 251

constitutionally ineffective assistance that resulted in the

loss of his appeal. Petitioner begins by noting that, under

ORS 138.071(5)(a) and (c) (set out above, 368 Or at 243 n 3),

a criminal defendant who has missed the 30-day deadline

for filing a notice of appeal can salvage his or her appeal by

filing a motion for leave to file a late appeal, accompanied

by a notice of appeal, not later than the 90th day after the

entry of the judgment of conviction. Recalling the standard

for ineffective assistance set out in the Sixth Amendment

and Article I, section 11, cases, see 368 Or at 247-48, peti-

tioner contends that appointed counsel who was “exer-

cis[ing] reasonable professional skill and judgment” would

have filed the required motion for leave and notice of appeal

within the 90-day time frame—even if, due to the delayed

appointment, he or she had only four days in which to do

so. Petitioner asserts that appointed counsel would not need

to have first consulted with petitioner to determine that

petitioner wished to proceed with those filings: It would

have been apparent from the fact that petitioner had filed a

pro se notice of appeal that he wanted to appeal and there-

fore would want counsel to do what was necessary to pre-

serve his ability to do so. Petitioner insists, too, that the

short time frame for filing the required motion and notice of

appeal would not excuse a failure to timely file them: Counsel

was obligated to file a motion based on whatever informa-

tion was available to him, even if he did not think that the

motion would satisfy the requirements for obtaining a late

appeal.

Petitioner contends that, in any event, there was

enough information that was immediately available to coun-

sel to file a motion that did satisfy the requirements of ORS

138.071(5)(a). In that regard, petitioner suggests that the

production of a notice of appeal to submit with the motion is

a purely “ministerial task,” i.e., one that requires no strate-

gic or analytic thought, which a reasonably competent law-

yer can accomplish quickly.10 And while he acknowledges

that producing the motion itself is not entirely ministerial,

10

At its most basic, a notice of appeal requires a title, the heading “Notice of

Appeal,” identification of the judgment from which the appeal is taken (naming

the trial judge, court and county), identification of the adverse party or parties,

proof of service, a certificate of filing, and a copy of the judgment. ORAP 2.05.

252 Strasser v. State of Oregon

petitioner contends that, upon receiving the Court of Appeals’

order appointing him as appellate counsel in a case identi-

fied by title and case number, counsel exercising reasonable

professional skill and judgment could have and would have

immediately accessed sufficient information to support a

motion for leave to file a late appeal.

In that regard, petitioner observes that a motion for

leave to file a late notice of appeal must include (in addition

to the late notice of appeal): (1) a showing, by clear and con-

vincing evidence, that the failure to file a timely notice of

appeal “[wa]s not attributable to the defendant personally”;

and (2) a showing of a “colorable claim of error in the proceed-

ing from which the appeal is taken.” ORS 138.071(5)(a)(A)

and (B). To make the first showing, petitioner suggests,

competent counsel would have examined the appellate case

file and noticed the handwritten notation on petitioner’s

pro se notice of appeal: “Initially mailed copy of Judgment

with Notice of Appeal mailed 8th of August 2016 by wit-

ness from CCJ.” Competent counsel, petitioner contends,

would have called attention to that notation in the motion

for leave, arguing that it showed that petitioner had timely

mailed a pro se notice of appeal which had not been received

by the Court of Appeals until after the 30-day filing period

had elapsed, and that the failure to file a timely notice of

appeal therefore “was not attributable to petitioner person-

ally.” ORS 138.071(5)(a). To make the second showing, peti-

tioner argues, competent counsel would have examined the

trial court case register, which purports to show all filings,

proceedings and actions taken in the case, and would have

discovered that petitioner was convicted in a bench trial but

had not waived his right to a jury trial in writing. Based

on that discovery, petitioner continues, competent counsel

would have argued in the motion that the trial court had

committed reversible error under Article I, section 11, when

it tried petitioner’s case from the bench without obtaining

a written waiver—a clear, not merely colorable, error. See

State v. Barber, 343 Or 525, 530, 173 P3d 827 (2007) (trying

criminal defendant from the bench without first obtaining

written jury trial waiver is plain, reversible error under

Article I, section 11). Finally, petitioner asserts, counsel

could not reasonably decline to submit such a motion out of

Cite as 368 Or 238 (2021) 253

concern that it would not meet the statutory requirements:

The decision to appeal was petitioner’s, and counsel was

obligated to offer any plausible arguments, based on the

information that was available, to assist in obtaining the

desired appeal. Cf. Garza, ___ US at ___ n 8, 139 S Ct at

746 n 8 (defendant’s appellate rights should not hinge on

appointed counsel’s opinion that there is no merit to the

appeal).

In short, petitioner argues, competent counsel could

have, and would have, filed a motion for leave to file a late

appeal and a notice of appeal by the 90th day after the judg-

ment of conviction was entered, in order to prevent the loss

of an appeal that petitioner evidently desired. In failing to

do so until after the 90-day deadline had passed, petitioner

concludes, appointed appellate counsel effectively overrode

petitioner’s desire to appeal, providing the kind of ineffective

assistance that, under the Sixth Amendment, is presumed

to be prejudicial. See Roe v. Flores-Ortega, 528 US 470, 484,

120 S Ct 1029, 145 L Ed 2d 985 (2000) (when lawyer’s defi-

cient performance deprives client of an appeal that client

desires, courts presume prejudice with no further showing

of the merits of the underlying claims); Garza, ___ US at

___, 139 S Ct at 747 (same). And, even if prejudice is not pre-

sumed in these circumstances under Article I, section 11,

petitioner insists that he was demonstrably prejudiced in

the required sense because, had a motion been timely filed

based on the information that was immediately available

to counsel when he was appointed (as discussed above), the

Court of Appeals would have deemed it sufficient to sat-

isfy the requirements of ORS 138.071(5)(a) and would have

granted petitioner a late appeal.

B. The State’s Response

The state challenges petitioner’s theory on a num-

ber of different fronts. First, it rejects petitioner’s conten-

tion that appellate counsel was constitutionally ineffective

in failing to meet the 90-day deadline for filing a motion

for a late appeal and accompanying notice of appeal under

ORS 138.071(5)(a) and (c). The state notes that, by the time

that he was appointed to represent petitioner in his appeal,

counsel would have had to produce and file the motion and

254 Strasser v. State of Oregon

notice within two business days to meet that deadline—a

task that counsel could not reasonably have been expected

to perform, given the nature of the required motion and the

limited information that counsel could have accessed in that

time period. The state further contends that, even assum-

ing that appellate counsel was ineffective in failing to timely

file the motion for delayed appeal and accompanying notice,

petitioner has not shown (and, more to the point, did not

show in the post-conviction proceeding) that he was preju-

diced by that ineffectiveness. To prove prejudice, the state

argues, petitioner would have had to show that the Court

of Appeals would have granted a motion for a late appeal if

counsel had timely filed one. But, the state explains, peti-

tioner could not make that showing because he could not

show that the failure to timely file a notice of appeal was

not attributable to him personally, a required element of

a motion for leave to file a late appeal under ORS 138.071

(5)(a): The record before the post-conviction court showed

only that the trial court had advised petitioner that he had

30 days after the judgment of conviction to file a notice of

appeal and that petitioner had not filed his pro se notice of

appeal until after the 30-day deadline had passed. Although

petitioner has suggested that an inference of timely mailing

of a notice of appeal can be drawn from the notation on peti-

tioner’s pro se notice of appeal to the effect that a copy of the

judgment and notice of appeal had been “mailed on [the] 8th

of August, 2016 by witness from CCJ,” and that that infer-

ence would support a further inference that the failure to

timely file a notice of appeal was not petitioner’s fault, the

state contends that that chain of inferences is nonsensical, if

for no other reason than that the stated date of mailing was

two days before petitioner was tried and convicted. Finally,

the state rejects petitioner’s assertion that, in these circum-

stances, he need not establish prejudice from counsel’s inef-

fective performance at all. The state argues that the Sixth

Amendment cases that petitioner cites for that proposition

are inapplicable—they pertain when a lawyer disregards his

or her client’s express desire to appeal and fails to perform

the purely ministerial task of filing a notice of appeal, and

do not pertain when, as here, the lawyer’s supposedly inef-

fective performance is a failure to employ the extraordinary

statutory remedy of moving for leave to file a late appeal.

Cite as 368 Or 238 (2021) 255

C. Analysis

As it turns out, we need not consider the parties’

arguments that relate to the prejudice prong of the inef-

fective assistance of counsel analysis, because it is clear

that petitioner’s claim falls short on the failure-to-exercise-

reasonable-professional-skill-and-judgment prong. We agree

with the state that, given the extreme lateness of counsel’s

appointment and the limited information that was immedi-

ately available, counsel’s failure to timely file a motion and

accompanying notice of appeal under ORS 138.071(5)(a) and (c)

did not fall below an objectively reasonable standard for

legal representation.

To conclude that appointed counsel performed inef-

fectively here, we would have to find that reasonable and

competent counsel, faced with these same circumstances,

would have timely filed a notice of appeal and motion for

leave to file a late appeal, the latter of which included show-

ings that the failure to meet the 30-day deadline for filing a

notice of appeal “was not attributable to defendant person-

ally” and that petitioner had at least one colorable claim of

error to raise in an appeal. ORS 138.071(5)(a). We cannot so

find.

When counsel was appointed, petitioner already had

missed the deadline for filing a notice of appeal. The only

way to salvage his appeal was by filing a motion for leave to

file a late notice appeal (and accompanying notice of appeal)

under ORS 138.071(5)(a) and (c). The Court of Appeals issued

its order appointing counsel only four days—two business

days—before the deadline for filing such a motion. Because

the order appointing counsel did not notify counsel that

petitioner’s notice of appeal had been untimely filed, coun-

sel would have had to discover for himself that a motion for

leave to file a late appeal and accompanying notice of appeal

were needed to prevent the loss of the appeal and that the

deadline for filing those documents was imminent.11

The only sources of information about petitioner’s

case that would have been immediately available to appointed

11

As noted above, a deficiency notice alerting counsel to those issues was not

sent to appointed counsel until November 8, 2016, the day that a motion for leave

to file a late appeal would have been due.

256 Strasser v. State of Oregon

counsel were the appellate case file and the circuit court case

register. Through an examination of those sources, compe-

tent counsel perhaps would have determined at some point

in the two business days left that the judgment of conviction

that petitioner sought to appeal was entered on August 10,

2016, that no notice of appeal had been filed within 30 days

of that date, and that, to preserve petitioner’s ability to bring

his appeal, counsel would have to immediately file a motion

for leave to file a late appeal that met the requirements set

out in ORS 138.071(5)(a). But nothing in the immediately

available sources would have explained to counsel why, and

under what circumstances, petitioner’s notice of appeal had

been filed late.12 In the absence of readily available infor-

mation speaking to those issues, counsel—no matter how

competent—would not have had any basis for asserting that

the failure to timely file the notice “was not attributable to

defendant personally,” much less “clear and convincing evi-

dence” that would have supported such an assertion.13

Neither can we say that competent counsel would

have been able to assert a colorable claim of error in a motion

for leave to file a late appeal within the timeframe that

was left to file that motion. Identifying trial error gener-

ally involves interviewing the defendant and examining the

trial court file and trial transcript examination of the entire

trial court file and the trial transcript—sources of informa-

tion that almost certainly would not have been available

to defendant’s court-appointed counsel lawyer before the

90-day late appeal period had expired. While we now know

12

Further investigation might have provided information that was relevant

and helpful, and competent counsel would have investigated further, time allow-

ing. But we must consider the reasonableness of counsel’s performance in the

specific circumstances that he faced, and we cannot say that reasonable counsel

necessarily would have performed, or would even have been able to perform, such

further investigation in two business days.

13

Petitioner suggests that competent counsel would have offered the hand-

written notation on petitioner’s pro se notice of appeal—“Initially mailed copy

of Judgment with Notice of Appeal * * * 8th of August 2016”—as supporting an

inference that the late filing was not attributable to petitioner because it showed

that petitioner had attempted an earlier, timely filing. But even assuming that,

within the short time available, competent counsel could have discovered and

understood the notation, we cannot find that he or she would have offered it in

accordance with petitioner’s theory. Given that the notation refers to a date that

fell two days before petitioner was convicted, no sensible inference relating to

petitioner’s personal responsibility for missing the deadline can be drawn from it.

Cite as 368 Or 238 (2021) 257

that petitioner did have colorable claims of error pertaining

to his supposed waiver of his rights to counsel and to a jury

trial, those claims of error would not have been evident to

competent counsel from the limited information that was

immediately available upon counsel’s appointment. While

petitioner suggests that one of those claims—the claim of

a jury right violation—would have been evident from the

absence of any mention of a written jury right waiver in the

trial court register, we think that that absence is only con-

spicuous in hindsight. Moreover, a competent lawyer would

reasonably have ethical concerns about asserting that there

had been no written jury right waiver without confirming

that assertion by, for example, checking in the trial court

file or discussing the matter with the defendant (or, if rel-

evant, the defendant’s trial lawyer)—options that, again,

would not have been available to appellate counsel before

the 90-day deadline had expired.

Petitioner balks at the notion that, in circumstances

like these, appointed counsel might, for ethical reasons, be

reluctant to base a motion for a late appeal on factual asser-

tions that he or she could not confirm and arguments that

he or she believed to be unreasonable or unresponsive to the

statutory requirements. He observes that a court-appointed

attorney representing a criminal defendant on direct appeal

may not refuse to prosecute an appeal that the defendant

desires, even when the attorney believes that there is no rea-

sonable basis for an appeal. See, e.g., Garza, ___ US at ___,

139 S Ct at 746 (when a defendant has expressly requested

an appeal, counsel performs deficiently by disregarding that

request, even if counsel believes that an appeal would be

“problematic” because defendant had waived his right to

appeal); see also State v. Balfour, 311 Or 434, 814 P2d 1069

(1991) (counsel who finds no nonfrivolous basis for appeal

has no ethical duty to withdraw; he or she must file a notice

of appeal, must review the record and discuss case with

defendant and trial counsel, and must file brief raising any

claims that defendant wishes to raise in section that defen-

dant signs); Anders v. California, 386 US 738, 87 S Ct 1396,

18 L Ed 2d 493 (1967) (defendant’s rights to due process and

equal protection were violated when appellate counsel sim-

ply informed court that he could find no meritorious issues

258 Strasser v. State of Oregon

for appeal, forcing defendant to shift for himself). Petitioner

argues that, in a similar vein, appointed counsel is obligated

to move for leave to file a late appeal that his or her client

desires, even when he or she is unable to find an adequate

factual and legal basis for such a motion. Recognizing that

obligation, he adds, “accommodates court-appointed coun-

sel’s obligation to prosecute the appeal at the request of the

defendant and * * * permits the Court of Appeals to make

the determination of whether the appeal may proceed based

on the information available to counsel within the jurisdic-

tional time limit.”

Petitioner’s invocation of the holdings in Garza,

Balfour, and Anders is inapt. While, in Garza, the Supreme

Court held that counsel who disregards the defendant’s

instruction to file a notice of appeal is professionally unrea-

sonable, it did so on the ground that filing such notice is a

“purely ministerial task.” ___ US at ___, 139 S Ct at 746.

Thus, filing such notice would not require counsel to confirm

the accuracy or reasonableness of any substantive claims

or assertions. And, while Balfour and Anders both provide

specific instructions about how court-appointed counsel can

meet their professional obligations to their clients when, after

researching and considering the case, they affirmatively find

that there are no meritorious issues for appeal, those cases

have nothing to say about cases in which appellate counsel

simply has no time to determine whether there is any factual

and legal basis for making a required argument or assertion.

We conclude that petitioner failed to satisfy the first

requirement for an ineffective assistance of counsel claim

under the theory that he offered:14 He has not shown that

appellate counsel’s failure to timely file a motion for leave

to file a late notice of appeal (with an accompanying notice

14

Petitioner has argued only that he was denied constitutionally adequate

counsel on appeal because the lawyer who was appointed to represent him on

appeal actually performed ineffectively. He has not argued that, and therefore we

do not consider whether, the Court of Appeals’ delayed appointment of appellate

counsel in itself constituted a denial of constitutionally adequate counsel. See,

e.g., Powell v. Alabama, 287 US 45, 56-59, 53 S Ct 55, 77 L Ed 158 (1932) (when

trial court appointed “all members of the bar” to represent defendants in capital

case only six days before trial, and one out-of-state lawyer responded but was

denied more time to prepare, appointment was so indefinite and so close upon

trial as to amount to a denial of effective assistance of counsel, without examina-

tion of counsel’s actual performance at trial).

Cite as 368 Or 238 (2021) 259

of appeal) constituted a failure to exercise reasonable pro-

fessional skill and judgment. And because petitioner has

failed to satisfy that first requirement, we need not consider

whether he has satisfied—or needs to satisfy—the second

(prejudice) requirement in order to hold that he failed to

prove his claim that he was denied constitutionally effective

assistance of counsel on appeal. The post-conviction court

did not err in rejecting that claim, and as a result, petitioner

was not entitled to a delayed direct appeal.

III. AVAILABIITY OF RELIEF

UNDER ORS 138.550(2)

Petitioner next challenges the post-conviction court’s

refusal to grant post-conviction relief on his two claims of

constitutional error by the trial court, on the ground that

those claims were barred in post-conviction under ORS

138.550(2). Petitioner contends that, even if the claimed

errors were ones that, in ordinary circumstances, would

have been barred in post-conviction under ORS 138.550(2)

because they could have been raised in a direct appeal, in

this case, they fell within the scope of an exception to the

bar, also in ORS 138.550(2), for claims brought by post-

conviction petitioners who were “not represented by coun-

sel in the direct appellate review proceeding, due to lack of

funds to retain such counsel and the failure of the court to

appoint counsel.” The post-conviction court concluded that

the exception did not apply, rejecting petitioner’s theory

that, in this case, the Court of Appeals’ delay in appointed

counsel was a “failure * * * to appoint counsel” within the

meaning of the provision. The court felt constrained to read

the words of the statutory exception literally, simply noting

that the Court of Appeals had appointed counsel.

Before this court, petitioner reiterates his conten-

tion that, because he was unrepresented on appeal due to

what was effectively the Court of Appeals’ failure to appoint

counsel, his two claims of constitutional error by the trial

court are excepted from the bar on raising claims in post-

conviction that could have been raised on appeal,15 ORS

138.550(2), while the state insists that the exception does

15

Petitioner appears to acknowledge that, in ideal circumstances, his claims

of trial court error could have been raised in a direct appeal.

260 Strasser v. State of Oregon

not apply because petitioner’s lack of appellate counsel was

not “due to * * * the failure of [C]ourt [of Appeals] to appoint

counsel” but, rather, to petitioner’s own lateness in filing a

notice of appeal and request for counsel. Both parties thus

focus on the meaning and scope of the exception set out

in the second sentence of ORS 138.550(2), and appear to

assume that the bar itself, set out in the first sentence of the

same provision, is applicable even to post-conviction peti-

tioners who, like petitioner here, did not obtain an appeal.

That assumption about the scope of the statutory bar is

incorrect—and in a way that renders irrelevant the parties’

present arguments about the meaning of the exception to

the bar.

While this court generally will confine itself to

the arguments that the parties have actually asserted in a

case, we have an independent duty to correctly interpret any

statute that comes before us, regardless of the arguments

and interpretations offered by the parties. See Engweiler v.

Persson/Dept. of Corrections, 354 Or 549, 559, 316 P3d 264

(2013) (court has obligation to reach correct interpretation of

statutes whether or not the correct interpretation has even

been advanced by the parties); Stull v. Hoke, 326 Or 72, 77,

948 P2d 722 (1997) (this court “is responsible for identifying

the correct interpretation, whether or not asserted by the

parties”). What that means in the present case is that,

in order to decide the ultimate issue—whether, in enact-

ing ORS 138.550(2), the legislature intended to bar post-

conviction relief for claims of constitutional error that were

not raised in a direct appeal when, at least in part because

of the late appointment of appellate counsel, the petition-

er’s attempt to bring a direct appeal was unsuccessful—we

must consider ORS 138.550(2) in its entirety, not just the

failure-to-appoint-appellate-counsel exception in the provi-

sion’s second sentence.

Because any search for the legislature’s intent in

enacting a statute must begin with the statutory text and

its context, State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009), we begin by setting out the text of ORS 138.550(2),

in the context of ORS 138.550 as a whole. Before we do so,

we note that ORS 138.550 is an original provision of the

Post-Conviction Hearing Act, Oregon Laws 1959, chapter

Cite as 368 Or 238 (2021) 261

636, which was enacted in 1959 to provide a single post-

conviction remedy to replace the multiplicity of procedures

that had previously been used to challenge criminal judg-

ments after appeal was no longer available. ORS 138.550

provides, in part:

“The effect of prior judicial proceedings concerning the

conviction of petitioner which 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 to have raised matters alleged

in the petition at the trial 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 pur-

sued while direct appellate review of the conviction 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 of the peti-

tioner, 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 proceed-

ing. 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 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 peti-

tion 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 hear-

ing 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

262 Strasser v. State of Oregon

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 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. * * *”

As suggested in the introductory sentence, ORS

138.550 purports to define the preclusive effects that prior

judicial proceedings related to the conviction will have on

a post-conviction challenge. Subsection (1) speaks to the

effect of a failure to seek appellate review of a conviction

or to raise an issue at trial and provides that such a fail-

ure “shall not affect the availability of relief.” Subsection (3)

speaks to the effect of an initial proceeding under the Post-

Conviction Hearing Act and provides, in effect, that any

ground for relief not asserted in that initial proceeding is

deemed waived for purposes of any subsequent proceeding—

unless it could not reasonably have been raised at the time.

Subsection (4) speaks to the effect of any post-conviction

proceeding that was held prior to the enactment of the Post-

Conviction Hearing Act, and bars a person who had previ-

ously challenged his or her conviction in such a proceeding

from bringing claims that either were decided or could have

been decided in that proceeding in a post-conviction pro-

ceeding under the Act.

Subsection (2), at issue here, speaks to those cir-

cumstances in which a post-conviction petitioner previously

“sought and obtained” direct appellate review, and directs

that, save for the exception set out in the second sentence,

no ground for relief that was or could have been raised in

“the direct appellate review proceeding” may be asserted

in post-conviction. Based solely on the wording of the first

sentence of subsection (2), it would appear that the bar that

it imposes on issues that could have been raised on appeal

applies only if direct appellate review actually was “sought

and obtained.” The second sentence of the subsection, set-

ting out the exception about which the parties are at odds,

seems to confirm that the bar is limited to cases in which an

Cite as 368 Or 238 (2021) 263

appeal proceeding was had: Insofar as it refers to claims not

specifically decided by “the appellate court” when the peti-

tioner was not represented in “the direct appellate review

proceeding,” it appears to assume that a direct appeal pro-

ceeding has occurred.

But, as noted, the parties here assume that the bar

applies more broadly—to post-conviction petitioners who did

not obtain an appeal. Although the text of ORS 138.550(2)

does not appear to support that assumption, we do not rely

on text alone to determine the legislature’s intentions. We

also examine the context surrounding the statutory pro-

vision and any helpful legislative history. Gaines, 346 Or

at 171-72. Here, the extremely sparse legislative history

of the Oregon Post-Conviction Hearing Act, of which ORS

138.550(2) is part, does not speak to the meaning of ORS

138.550(2), leaving only context to be considered.

Context includes other parts of the statute in

which the provision at issue resides. One such provision is

the subsection of ORS 138.550 that immediately precedes

subsection (2), ORS 138.550(1), which provides that a post-

conviction petitioner’s “failure * * * to have sought appellate

review * * * shall not affect the availability of relief under

[the Post-Conviction Hearing Act].” That provision, on its

face, undermines the notion that the bar set out in subsec-

tion (2) applies beyond those cases in which the petitioner

had both sought and obtained direct appellate review of his

or her case. At the very least, it appears to indicate that

the bar in subsection (2) would not apply when there had

been no attempt to appeal at all. And while subsection (1)

does not itself address circumstances like those in the pres-

ent case—where petitioner sought but did not obtain direct

appellate review—that is not a reason to assume that such

circumstances were meant to fall within the purview of sub-

section (2).

The introductory paragraph of ORS 138.550—

stating that the preclusive effects of prior judicial proceed-

ings relating to a post-conviction petitioner’s conviction

“shall be as specified in this section and not otherwise”—

also qualifies as relevant context. That paragraph sug-

gests that the four subsections of ORS 138.550 set out the

264 Strasser v. State of Oregon

entire universe of applicable rules of preclusion—there are

no unwritten additions from, for example, the case law

predating the Post-Conviction Hearing Act. That wording

would seem to militate against applying the preclusive rule

announced in subsection (2) beyond the circumstances that

are specified—“[w]hen the petitioner sought and obtained

direct appellate review of the conviction and sentence of the

petitioner.”

There is another piece of evidence that supports

that understanding. When attempting to discern what the

legislature intended by a provision of the Post-Conviction

Hearing Act, this court has often turned to the commentary

of two individuals who were involved in drafting the Act,

published as a law review article: Jack G. Collins and Carl

R. Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev

337, 356-57 (1960). See, e.g., State v. Verduzco, 357 Or 553,

570, 355 P3d 902 (2015) (noting that court has repeatedly

looked to the Collins and Neil article in seeking to under-

stand the 1959 Post-Conviction Hearing Act). In their com-

mentary on section 15 of the Act (Or Laws 1959, ch 636,

§ 15), now codified at ORS 138.550, Collins and Neil clearly

distinguish the preclusion rules that apply under subsec-

tions (1) and (2):

“Under subsection (1) the failure of a defendant to assert

error at the trial or a failure to appeal from the conviction

does not preclude the assertion of such error in a proceed-

ing under this act. A different rule is provided in subsec-

tion (2) when a direct appeal from the conviction was taken

by petitioner. Any question actually raised or which could

reasonably have been raised on the appeal cannot be liti-

gated in a proceeding under the act.”

39 Or L Rev at 356. They then explain that the two sub-

sections “adopt substantially the rules heretofore applied in

habeas corpus cases as to the effect of appeal or failure to

appeal.” Id. at 356-57. Noting that some Oregon cases had

stated that the habeas remedy is unavailable to challenge

a criminal judgment when an appeal could have raised the

same claims “but was not taken,” Collins and Neil go on to

explain that those statements do not reflect what the court

actually did when confronted by a habeas claim by a peti-

tioner who had not brought a direct appeal. “[I]nvariably,”

Cite as 368 Or 238 (2021) 265

they explained, the court would announce the rule but then

go on to decide the case on the merits. Id. at 357. And, in

cases involving claimed defects “of such magnitude as to

render the conviction and imprisonment thereon uncon-

stitutional” that the court deemed meritorious, the court

would simply grant habeas relief, omitting any mention of

the habeas petitioner’s failure to appeal. Id. Collins and Neil

contrasted those cases with the cases of habeas petitioners

who previously had appealed:

“Where the prisoner took an appeal from his conviction and

could have raised or actually did raise the claims asserted

in the habeas corpus proceeding, the Oregon court has gen-

erally refused to decide the merits of the petition. However,

this rule has been abandoned on questions of public impor-

tance. Subsection (2) would appear to be a justifiable rule

for this situation, allowing postconviction attack only

when a claim could not reasonably have been raised on the

appeal. If a petitioner had a reasonable opportunity to pres-

ent a question before the highest court of the state, there is

no substantial reason why further judicial time should be

spent in litigating the question in other state courts.”

Id. The clear implication of the foregoing explanation is that

subsection (2) reflects the court’s practice of applying preclu-

sion principles in habeas cases when the petitioner “took an

appeal” and subsection (1) reflects the court’s entirely differ-

ent practice—not the rule that it sometimes stated—when

an appeal “was not taken.”

Later in the commentary on these provisions,

Collins and Neil explain how the various subsections of ORS

138.550 work by setting out the following scenario:

“[S]uppose John Doe is convicted in Oregon of a crime by

virtue of the admission at his trial of evidence seized in vio-

lation of the Federal Constitution. At the time of his trial, a

conviction based upon such evidence does not conflict with

the fourteen amendment. Two years after his conviction,

the Supreme Court of the United States reverses its posi-

tion and decides that a conviction based upon such evidence

violates rights guaranteed by the fourteenth amendment.

Consider the possible results under section 15 of the act

if, before the Supreme Court decision, Doe had taken the

following steps to set aside his conviction on the identical

266 Strasser v. State of Oregon

ground: (1) no appeal and no postconviction proceeding;

(2) appeal, but the conviction was affirmed by the Oregon

Supreme Court; * * *

“In the first situation, Doe could obtain relief by bring-

ing a postconviction proceeding. His failure to appeal is

immaterial under subsection (1) * * *. If he had followed the

second course of action, subsection (2) would apparently

bar relief when Doe was represented by counsel on appeal.”

Id. at 358-59. That explanation appears to confirm that the

bar in subsection (2) on raising claims in post-conviction

proceedings that could have been raised in a direct appeal

applies only when a direct appeal actually was obtained.

Thus far, all of the evidence points in the same direc-

tion. However, when examining the context surrounding a

statutory provision in order to ascertain its meaning, we

also consider prior cases that purport to interpret the provi-

sion itself or related provisions. Owens v. Maass, 323 Or 430,

435, 918 P2d 808 (1996). This court has never considered

whether the bar on raising claims in post-conviction that

could have been raised on appeal applies beyond the strict

terms of ORS 138.550(2), i.e., in circumstances in which

the petitioner had not previously obtained direct appellate

review. However, the Court of Appeals has long held that,

regardless of whether an appeal was actually taken, claims

that reasonably could have been asserted in a direct appeal

may not be asserted in post-conviction, unless the post-

conviction petitioner shows fraud, coercion, or gross negli-

gence of counsel. See Lerch v. Cupp, 9 Or App 508, 497 P2d

379 (1972) (interpreting ORS 138.550(1) as barring claims

that could have been raised in direct appeal when petition

did not appeal); see also Batchelor v. State, 47 Or App 697,

614 P2d 1236 (1980) (following Lerch); Hunter v. Maass,

106 Or App 438, 808 P2d 723, rev den, 312 Or 80 (1991)

(same). Although this court has not endorsed that holding,

it appears that many in the legal community have accepted

it as settled law. See, e.g., Criminal Law § 30.1-3 (OSB CLE

2013 rev) (citing Lerch and other Court of Appeals cases

for the proposition that petitioner who did not appeal can

obtain post-conviction relief for claim that could reasonably

have been raised in a direct appeal only if the petitioner

alleges facts sufficient to show fraud, coercion or such gross

Cite as 368 Or 238 (2021) 267

incompetence of counsel as to amount in law to a denial of

the right to counsel).

Because the cited cases were not decided by this

court, they ordinarily would not enter into this court’s efforts

to construe ORS 138.550(2). But, given the apparent wide

acceptance of the rule that they stand for and their simi-

lar approach, with respect to the meaning ORS 138.550(1),

to two cases that were decided by this court,16 we feel com-

pelled to address them—or at least Lerch, the lead Court of

Appeals case on the issue—in our analysis.

In Lerch, a petitioner who had not appealed his con-

viction sought post-conviction relief for a purported viola-

tion of his right to a speedy trial, but the post-conviction

court dismissed the petition, accepting the state’s theory

that the petitioner could not raise claims in post-conviction

that he could have raised in a direct appeal, had he cho-

sen to bring one. On appeal of that dismissal, the petitioner

pointed out that, under ORS 138.550(1), a failure to seek

appellate review “shall not affect the availability of relief”

under the Post-Conviction Hearing Act. 9 Or App at 509-

11. The Court of Appeals insisted, however, that subsec-

tion (1) should not be read literally but must be construed

in the light of Act’s overall “policy and purpose,” id. at 511,

which, the court concluded, included a policy and purpose

of “adopt[ing] substantially the rules heretofore applied in

habeas corpus cases,” id. at 512. The court then cited pre-

Act statements by this court to the effect that habeas corpus

is not available to those who neglected to appeal, as well as a

statement in one of its own cases, Wheeler v. Cupp, 3 Or App

1, 8, 470 P2d 957 (1970), that, when a post-conviction peti-

tioner had instructed counsel to dismiss his direct appeal,

the post-conviction court could properly sustain the state’s

demurrer to petitioner’s post-conviction claims unless the

petitioner had “allege[d] facts sufficient to show fraud, coer-

cion or such gross incompetence of counsel as to amount in

law to a denial of the right to counsel[.]” Finally, the court

suggested that a literal reading of ORS 138.550(1) would be

16

The two cases are North v. Cupp, 254 Or 451, 461 P2d 271 (1969), cert

den, 397 US 105 (1970), and Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368

(1994), which are discussed below, 368 Or at 270-71.

268 Strasser v. State of Oregon

irrational, given that there are strict statutory time limits

on bringing a criminal appeal but no time limits on seeking

post-conviction relief:17 “The post-conviction route, which is

available without regard to a time limit as a means of rais-

ing otherwise appealable issues, if unreasonably extended,

would largely supersede the remedy of appeal, thus making

useless the statutory time limit for criminal appeals.” Lerch,

9 Or App at 514. The court ultimately concluded:

“It is evident that the purpose and policy behind ORS

138.550(1), when construed in light of the Act as a whole,

dictates that the statute be read as requiring issues that

can be raised on direct appeal to be so raised. This con-

clusion is further supported by the policy inherent in ORS

138.550(2), which provides that when a defendant does

seek and obtain direct appellate review, no ground for post-

conviction relief may be asserted

“ ‘* * * unless such ground was not asserted and could

not reasonably have been asserted in the direct appel-

late review proceeding. * * *’ ”

Id. at 515 (elipses in original). The court added that a post-

conviction petitioner could avoid the bar only by “alleg[ing]

facts sufficient to show fraud, coercion or such gross incom-

petence of counsel as to amount in law to a denial of the right

to counsel * * * or that the issue sought to be determined in

the post-conviction hearing could not reasonably have been

raised had there been an appeal.” Id. at 515-16. The Court

of Appeals thus interpreted ORS 138.550(1) as effectively

extending to that subsection the bar in subsection (2) on

raising claims in post-conviction that reasonably could have

been raised on appeal. As noted, the Court of Appeals has

reiterated that interpretation in its subsequent cases and

this court has never considered whether that interpretation

is correct.

Lerch is not binding precedent for this court. Even

if it were our own opinion, its precedential value would be

questionable, because it failed to apply the proper analytical

framework and to adequately analyze the controlling issue.

See Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1

17

Although the original 1959 Post-Conviction Hearing Act, which was at

issue in Lerch, set no time limits on filing a petition for post-conviction relief,

the statute has since been amended and now includes a limitations period. ORS

138.510(3).

Cite as 368 Or 238 (2021) 269

(2011) (although court begins with the assumption that

issues considered in its prior cases were correctly decided,

it will reconsider an earlier case if a party can demonstrate

that court did not reach correct result in the case because

it was not presented with important argument or failed to

apply its usual decisional framework or adequately analyze

the controlling issue). The analysis in the opinion is flawed,

first, because it gives short shrift to the actual text that it

purports to construe, offering no explanation, in terms of

the text, of the meaning that it ultimately assigns to ORS

138.550(1). Second, it does not compare that subsection with

an obvious counterpart, subsection (2), and thus fails to con-

front the express bar in that subsection to raising claims

that could have been raised in a direct appeal, as well as the

apparently limited application of that bar to cases in which

the petitioner had “sought and obtained” a direct appeal.

Instead of considering the text and context of subsection (1),

the Lerch court drew its conclusion about the meaning of

that subsection almost entirely from what it deemed to be

the Post-Conviction Hearing Act’s overall “policy and pur-

pose.” And while the court purported to find, in the Collins

and Neil commentary discussed above, a policy and purpose

of applying the preclusion principles employed in pre-Act

habeas cases to post-conviction proceedings under the Act,

it appears to have missed the point of the commentators’

discussion of the pre-Act habeas cases—that, despite state-

ments in those cases to the effect that “habeas corpus will

not lie where an appeal could have raised the same issue but

was not taken,” this court in most cases actually decided,

on the merits, the claims of habeas petitioners who had not

brought direct appeals. See above, 368 Or at 264-65. At the

same time, the Lerch court ignored the parts of the Collins

and Neil commentary that are directly contrary to its con-

clusion. 368 Or at 264-66. Finally, the court relied heavily

on the fallacious idea that, if a petitioner could simply forgo

an appeal and still bring all of his or her claims of trial

error in post-conviction, the post-conviction remedy “would

largely supersede the remedy of appeal.” In fact, a person

who seeks to challenge his or her criminal conviction would

have little incentive to forgo an appeal and rely entirely

on the postconviction remedy since, by doing so, he or she

would lose the ability to obtain relief for subconstitutional

270 Strasser v. State of Oregon

trial errors. See ORS 138.530(1) (providing post-conviction

relief only for substantial denials of constitutional rights,

lack of jurisdiction, unauthorized or unconstitutional sen-

tences, and convictions under an unconstitutional criminal

statute). In short, although it appears to be broadly accepted

as a correct construction of ORS 138.550(1) and, by exten-

sion, ORS 138.550(2), Lerch is wrong both methodologically

and in substance.

Our rejection of the Court of Appeals’ interpretation

of ORS 138.550(1) in Lerch may raise some questions about

two of our own cases that interpret a closely related part of

that same subsection—North v. Cupp, 254 Or 451, 461 P2d

271 (1969), cert den, 397 US 105 (1970), and Palmer v. State

of Oregon, 318 Or 352, 867 P2d 1368 (1994). While Lerch

addressed subsection (1)’s declaration that “the failure of

a petitioner to have sought appellate review * * * shall not

affect the availability of [post-conviction] relief,” North and

Palmer both analyze the subsection’s parallel declaration

that “the failure of a petitioner * * * to have raised matters

alleged in the petition at trial, shall not affect the avail-

ability of relief.” In North, this court rejected a literal con-

struction of that declaration, which would have permitted

post-conviction petitioners to assert claims of constitutional

error that were not preserved at trial, on the sole ground

that such a construction would undermine the longstand-

ing rule that trial errors must be preserved for appeal (and,

thus, without employing our current interpretive methodol-

ogy). 254 Or at 454-56. Instead, the North court held that

the provision actually barred post-conviction claims of con-

stitutional error that had not been preserved by an objection

in the trial court, with some exceptions. Id. at 456-57. In

Palmer, this court opined that the court’s interpretation of

ORS 138.550(1) in North had “become[ ] part of the statute”

and that that interpretation applied not only to claims of a

substantial denial of constitutional rights but to other kinds

of errors that were cognizable in post-conviction. The court

summarized that interpretation in the following terms:

“When a criminal defendant fails to raise an issue at trial

that the defendant reasonably could have been expected to

raise, the defendant cannot obtain post-conviction relief on

that ground unless the defendant alleges and proves that

Cite as 368 Or 238 (2021) 271

the failure to raise the issue was due to one (or more) of a few

narrowly drawn exceptions.” 318 Or at 358.

Although our decision with respect to Lerch might

suggest that Palmer and North are no longer good law, we

need not decide that question at this juncture. Those cases

do not affect our conclusion that the Court of Appeals was

wrong, in Lerch, in interpreting ORS 138.550(1) as barring

claims in post-conviction that could have been brought in a

direct appeal, regardless of whether an appeal was obtained.

And, to the extent that we have concluded that Lerch is

wrong about the meaning of ORS 138.550(1), anything that

the case might be supposed to imply about the meaning of

ORS 138.550(2) is also wrong—or, at least, irrelevant.

Having considered the wording of ORS 138.550(2)

and the context surrounding that provision that is relevant,

we conclude that the legislature that enacted the provision

did not intend that the first sentence apply beyond its literal

terms. The bar on asserting claims in post-conviction that

“w[ere] not asserted and could not reasonably have been

asserted in the direct appellate review proceeding” applies

only when, as stated in that first sentence, the petitioner

who brings the claims “sought and obtained direct appel-

late review of the conviction and sentence.” While, under

the second sentence of ORS 138.550(2), the claims of post-

conviction petitioners who were not represented by counsel

on appeal are excepted from that bar if the lack of coun-

sel resulted from the court’s failure to appoint counsel, the

requirements that attach to that exception are irrelevant to

petitioners whose claims would not be subject to the bar in

the first instance because they did not obtain an appeal.

Petitioner here did not obtain an appeal, so even

if his claims of constitutional error by the trial court could

have been raised in a direct appeal, they were not barred in

post-conviction under ORS 138.550(2) or any other provision

in the Post-Conviction Hearing Act. The post-conviction

court erred in concluding otherwise and in refusing to decide

those claims.

IV. CONCLUSION

For the reasons set out above, we conclude that the

post-conviction court correctly rejected petitioner’s claim

272 Strasser v. State of Oregon

that appellate counsel was constitutionally ineffective in

failing to meet the deadline provided in ORS 138.071(5)(c)

for filing an amended notice of appeal and motion for leave

to file a late appeal. Petitioner therefore is not entitled to a

delayed appeal. But, we conclude that the post-conviction

court’s refusal to consider petitioner’s claims of constitu-

tional error by the trial court, on the ground that they could

have been raised on appeal, was based on an erroneous

reading of ORS 138.550(2). Regardless of what is required

to invoke the exception set out in the second sentence of

that provision for petitioners who were not represented by

appointed counsel on appeal, the bar set out in the first sen-

tence does not apply to petitioners who, like petitioner here,

did not appeal. Accordingly, we reverse the post-conviction

court’s denial of plaintiff’s petition for post-conviction relief,

as well as the Court of Appeals decision affirming that

denial, and remand to the post-conviction court to decide

petitioner’s claims that his constitutional rights to counsel

and to a jury trial were violated.

The decision of the Court of Appeals is reversed.

The order of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.