O'Neil-Barrett v. Highberger

680 May 20, 2026 No. 431

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

LIAM O’NEIL-BARRETT,

Petitioner-Appellant,

v.

Joshua HIGHBERGER,

Superintendent,

Oregon State Correctional Institution,

Defendant-Respondent.

Marion County Circuit Court

21CV03988; A181479

Thomas M. Hart, Judge.

Submitted March 7, 2025.

Margaret Huntington and Equal Justice Law, filed the

briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Rebecca M. Auten, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Powers, Judge, and

Pagán, Judge.

POWERS, J.

Reversed and remanded.

Cite as 349 Or App 680 (2026) 681

POWERS, J.

In this post-conviction proceeding, petitioner chal-

lenges the grant of summary judgment to the superinten-

dent, after concluding that petitioner’s claims were procedur-

ally barred because they could reasonably have been raised

earlier. In three assignments of error, petitioner contends

that the post-conviction court erred by concluding that his

claim that the state violated the plea agreement was proce-

durally barred; by denying his request to submit additional

evidence in response to the superintendent’s motion for

summary judgment; and by concluding that his claim that

his first-degree robbery verdict should have merged with

an aggravated murder verdict was procedurally barred. As

explained below, we conclude that the post-conviction court

erred in granting summary judgment to the superinten-

dent. On the first assignment, which involves whether the

state violated the plea agreement, we conclude that sum-

mary judgment was improper because there was a genuine

issue of material fact as to whether petitioner should have

been on notice of the breach at the time of the judgment.

On the third assignment, which involves the merger issue,

we conclude that the post-conviction court erred in granting

summary judgment because, as a matter of law, petitioner’s

claim satisfied the escape clause, which allowed petitioner

an extended timeframe to file for relief. Those conclusions

obviate the need to reach petitioner’s second assignment of

error. Accordingly, we reverse and remand.

We set forth an overview of the procedural history

and provide more details in our discussion of each assign-

ment of error. In 1995, petitioner pleaded no contest to three

counts of aggravated murder, one count of murder, and one

count of first-degree robbery arising out of an incident in

which petitioner shot and killed a convenience store clerk

during a robbery in Klamath County. The aggravated mur-

der counts were based on three alternative theories: Count

1 was aggravated murder committed during the commis-

sion of first-degree robbery; Count 2 was aggravated murder

committed during the commission of second-degree kidnap-

ping; and Count 3 was aggravated murder committed to con-

ceal defendant’s identity. The trial court merged the guilty

682 O’Neil-Barrett v. Highberger

verdict for murder with Count 3 and merged the guilty ver-

dict for first-degree robbery with Count 1. Petitioner filed a

direct appeal, we affirmed the judgment, and the Supreme

Court remanded for merger of the three aggravated murder

verdicts into a single aggravated murder conviction. State

v. Barrett, 331 Or 27, 36-37, 10 P3d 901 (2000), abrogated on

other grounds by Martinez v. Cain, 366 Or 136, 458 P3d 670

(2020).

On remand, the trial court entered a conviction for

a single count of aggravated murder and merged the murder

verdict into the aggravated murder conviction. The court,

however, did not merge the first-degree robbery verdict

with an aggravated murder verdict, following the instruc-

tions in Barrett, 331 Or at 37 n 4 (explaining that “a sepa-

rate conviction could be entered on the robbery charge on

remand”).1 The court sentenced petitioner to a life sentence

with a 30-year minimum and a consecutive 72-month depar-

ture sentence for the robbery conviction. On the robbery

conviction, the court noted in the judgment that petitioner

“falls into gridblock 9I for which the sentence is 36 months,”

and it found “substantial and compelling reasons” to enter a

durational departure of 72 months. Petitioner sought post-

conviction relief and filed other legal actions before filing

this post-conviction proceeding more than 20 years after the

judgment became final.2

1

The court’s entire footnote explanation provides:

“Under the foregoing analysis, a separate conviction could be entered

on the robbery charge on remand. Robbery and aggravated murder clearly

are set out in two different statutory provisions, ORS 164.415 and ORS

163.095. Moreover, in light of our conclusion that the various aggravating

circumstances are not ‘elements’ for purposes of former ORS 161.062(1) but,

rather, alternative ways of proving the element of aggravation, the statu-

tory provisions penalizing robbery and aggravated murder each involve an

element that the other does not and address separate legislative concerns.

Accordingly, for purposes of former ORS 161.062(1), we do not view robbery

as a lesser-included offense to the aggravated-murder charge.”

Barrett, 331 Or at 37 n 4.

2

Among the other legal actions challenging his convictions or sentence,

petitioner filed a mandamus proceeding and separately filed, approximately one

month following the decision in Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020),

a motion to modify the erroneous term in his judgment, arguing that the robbery

verdict should merge into the aggravated murder conviction. The trial court held

a hearing and denied the motion, finding that the issue was not properly before

the court. Those proceedings are not at issue in this appeal.

Cite as 349 Or App 680 (2026) 683

In this post-conviction proceeding, petitioner made

three claims, two of which are relevant in this opinion. The

first claim was that, following the Supreme Court’s decision

in Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020), peti-

tioner’s robbery verdict should merge with an aggravated

murder verdict. See Martinez, 366 Or at 150 (disavowing

“footnotes two and four of Barrett” and explaining that

the “predicate felonies of felony murder are not alternative

ways to prove ‘aggravation’ for aggravated felony murder.

Accordingly, Barrett does not support holding that ORS

161.067(1) prevents merger of the two counts.”). Petitioner’s

second claim was that the state violated the plea agreement

in 2021 when the parole board found petitioner capable of

rehabilitation in a reasonable time and applied the “matrix”

system to determine his release date. Petitioner contended

that the terms of his plea agreement required the board

to apply the “sentencing guidelines” and not the matrix to

determine his release date.

In the post-conviction court, the superintendent

moved for summary judgment, asserting, in part, that

petitioner’s claims were untimely. The post-conviction

court granted summary judgment in favor of the super-

intendent, concluding that petitioner should have been on

notice of his claims earlier and thus that the claims do not

fall within the escape clauses. This timely appeal follows.

On appeal, petitioner argues that the post-conviction

court erred in concluding that his claims were procedurally

barred and thus in granting the superintendent’s motion

for summary judgment. Petitioner acknowledges that he

brought his claims more than 20 years following the judg-

ment of conviction, which is beyond the two-year statute of

limitations on post-conviction claims. See ORS 138.510(3)

(generally providing a two-year statute of limitations for

post-conviction relief). However, petitioner asserts that,

viewing the evidence in the light most favorable to him, his

claims fall within the escape clauses in ORS 138.550(3) and

ORS 138.510(3), which allow for an extended timeframe to

file for relief when the ground for relief “could not reasonably

684 O’Neil-Barrett v. Highberger

have been raised” in earlier petitions.3 As explained below,

we agree with petitioner’s arguments.

We review a post-conviction court’s grant of sum-

mary judgment to determine whether the court erred in

concluding that there were no genuine issues of material

fact and that the moving party was entitled to judgment

as a matter of law. Bean v. Cain, 314 Or App 529, 530, 497

P3d 1273 (2021). A movant is entitled to summary judgment

if, viewing the evidence in the light most favorable to the

party opposing summary judgment, the “pleadings, deposi-

tions, affidavits, declarations, and admissions on file show

that there is no genuine issue as to any material fact and

that the moving party is entitled to prevail as a matter of

law.” ORCP 47 C. When summary judgment is based on a

petitioner’s untimely claim failing to fall within an escape

clause, we review for a genuine issue of material fact or for

an error of law depending on the circumstances. See Eklof

v. Steward, 360 Or 717, 733, 385 P3d 1074 (2016) (explaining

that in “some post-conviction cases, where the question is

whether a claim reasonably could have been raised in a prior

action, the issue will be a legal one, capable of resolution on

3

ORS 138.550(3) provides:

“(3) All grounds for relief claimed by petitioner in a petition pursuant

to ORS 138.510 to 138.680 must be asserted in the original or amended peti-

tion, and any grounds not so asserted are deemed waived unless the court on

hearing a subsequent petition finds grounds for relief asserted therein which

could not reasonably have been raised in the original or amended petition.

However, any prior petition or amended petition which was withdrawn prior

to the entry of judgment by leave of the court, as provided in ORS 138.610,

shall have no effect on petitioner’s right to bring a subsequent petition.”

ORS 138.510(3) provides:

“(3) A petition pursuant to ORS 138.510 to 138.680 must be filed within

two years of the following, unless the court on hearing a subsequent petition

finds grounds for relief asserted which could not reasonably have been raised

in the original or amended petition:

“(a) If no appeal is taken, the date the judgment or order on the convic-

tion was entered in the register.

“(b) If an appeal is taken, the date the appeal is final in the Oregon

appellate courts.

“(c) If a petition for certiorari to the United States Supreme Court is

filed, the later of:

“(A) The date of denial of certiorari, if the petition is denied; or

“(B) The date of entry of a final state court judgment following remand

from the United States Supreme Court.”

Cite as 349 Or App 680 (2026) 685

summary judgment” but also noting that summary judg-

ment would not be appropriate when the inquiry depends on

factual questions).

In petitioner’s first assignment of error, he contends

that the post-conviction court erred in concluding that his

second claim for relief—viz., the state’s alleged violation of

the plea agreement—was procedurally barred. In his peti-

tion for post-conviction relief, petitioner alleged that as

part of his plea agreement, the parties agreed that the sen-

tencing guidelines, and not the matrix, would apply to his

convictions. Petitioner argues that the state breached the

plea agreement when, in May 2021, the parole board found

that petitioner was likely to be rehabilitated in a reason-

able amount of time and then applied the matrix rules to

set a prison term of 168 months. In support of his position,

petitioner filed a response to the summary judgment motion

and included a declaration explaining that his attorney told

him that his sentences would be governed by the sentencing

guidelines, not the matrix. He also submitted a declaration

from the Klamath County District Attorney’s Office in which

Costello, the District Attorney, explained that at the time

of the agreement, all parties understood that if petitioner

was found to be rehabilitated by the parole board, then

his sentence would be governed by the sentencing guide-

lines. Finally, petitioner submitted the plea petition, which

provided that “[t]his is a sentencing guidelines case.” On

appeal, petitioner maintains that, based on the evidence he

produced during the summary judgment proceedings, there

is a genuine issue of material fact as to whether he could

have raised his claim in a prior post-conviction proceeding.

The superintendent remonstrates that the post-

conviction court correctly granted summary judgment

because petitioner’s claim is procedurally barred because

it could have been brought earlier. In the superintendent’s

view, petitioner could have brought his claim as soon as the

judgment on remand was entered because the judgment

imposed a non-guidelines sentence. Specifically, the judg-

ment provides that, as to the aggravated murder conviction,

petitioner was sentenced to “life with a 30-year minimum,”

which the superintendent considers a sentence pursuant

686 O’Neil-Barrett v. Highberger

to ORS 163.105, not the sentencing guidelines. Therefore,

according to the superintendent, even if the prosecutor

promised that petitioner’s aggravated murder conviction

would be governed by the sentencing guidelines, petitioner

was on notice at the time the judgment was issued that his

sentence would not be determined according to the sentenc-

ing guidelines, and thus, petitioner could have brought the

claim in his original post-conviction case.

We conclude that the post-conviction court erred

in granting summary judgment because the record demon-

strates a genuine issue of material fact as to whether peti-

tioner could reasonably have brought a claim that the state

breached the plea agreement earlier than he did. As noted

above, petitioners must bring claims for post-conviction

relief within two years of the criminal judgment or, if the

case is appealed, the date on which the appeal is final. ORS

138.510(3). Exceptions to that general rule are in the escape

clauses of ORS 138.550(3) and ORS 138.510(3), which allow

for an extended timeframe to file for relief when the ground

for relief “could not reasonably have been raised” in earlier

petitions. A ground for relief could not reasonably have been

raised earlier if either the legal or factual “ground for relief

was not known and was not reasonably available.” Gutale v.

State of Oregon, 364 Or 502, 509, 435 P3d 728 (2019).

Our role on appeal is narrow. In addressing the

first assignment, we need not determine whether petition-

er’s claim falls within the escape clause; rather, our sole

task on appeal is to determine whether petitioner created a

genuine issue of material fact as to whether his claim falls

within the escape clause such that summary judgment was

improper. We conclude that petitioner’s affidavit combined

with the plea agreement that he submitted in his response

to the summary judgment motion created a genuine issue of

material fact as to whether the judgment should reasonably

have alerted petitioner that the state would violate the plea

agreement.

The judgment provides that petitioner’s sentence

for the aggravated murder conviction was a life sentence

with a 30-year minimum, which the superintendent notes

Cite as 349 Or App 680 (2026) 687

and petitioner acknowledges is pursuant to ORS 163.105.4

Although we agree with both parties that ORS 163.105

applies to aggravated murder convictions, petitioner cre-

ated a genuine issue of material fact as to whether the state

agreed that his particular sentence would be governed by

4

ORS 163.105 (1993), amended by Or Laws 1995, ch 421, § 2; Or Laws 1999,

ch 59, § 31; Or Laws 1999, ch 782, § 5; Or Laws 2007, ch 717, § 1; Or Laws 2009,

ch 660, § 6; Or Laws 2015, ch 820, § 45; Or Laws 2019, ch 634, § 27, provides:

“Notwithstanding the provisions of ORS chapter 144, ORS 421.165 and

421.450 to 421.490:

“(1)(a) When a defendant is convicted of aggravated murder as defined

by ORS 163.095, the defendant shall be sentenced, pursuant to ORS 163.150,

to death, life imprisonment without the possibility of release or parole or life

imprisonment.

“(b) A person sentenced to life imprisonment without the possibility of

release or parole under this section shall not have that sentence suspended,

deferred or commuted by any judicial officer, and the State Board of Parole and

Post-Prison Supervision may not parole the prisoner nor reduce the period of

confinement in any manner whatsoever. The Department of Corrections or

any executive official may not permit the prisoner to participate in any sort

of release or furlough program.

“(c) If sentenced to life imprisonment, the court shall order that the

defendant shall be confined for a minimum of 30 years without possibility of

parole, release on work release or any form of temporary leave or employment

at a forest or work camp.

“(2) At any time after 20 years from the date of imposition of a minimum

period of confinement pursuant to subsection (1)(c) of this section, the State

Board of Parole and Post-Prison Supervision, upon the petition of a prisoner

so confined, shall hold a hearing to determine if the prisoner is likely to be

rehabilitated within a reasonable period of time. The sole issue shall be

whether or not the prisoner is likely to be rehabilitated within a reasonable

period of time. The proceeding shall be conducted in the manner prescribed

for a contested case hearing under ORS 183.310 to 183.550 except that:

“(a) The prisoner shall have the burden of proving by a preponderance

of the evidence the likelihood of rehabilitation within a reasonable period of

time; and

“(b) The prisoner shall have the right, if the prisoner is without sufficient

funds to employ an attorney, to be represented by legal counsel, appointed by

the board, at board expense.

“(3) If, upon hearing all of the evidence, the board, upon a unanimous

vote of all of its members, finds that the prisoner is capable of rehabilitation

and that the terms of the prisoner’s confinement should be changed to life

imprisonment with the possibility of parole, or work release, it shall enter an

order to that effect and the order shall convert the terms of the prisoner’s con-

finement to life imprisonment with the possibility of parole or work release.

Otherwise the board shall deny the relief sought in the petition.

“(4) Not less than two years after the denial of the relief sought in a peti-

tion under this section, the prisoner may petition again for a change in the

terms of confinement. Further petitions for a change may be filed at intervals

of not less than two years thereafter.”

688 O’Neil-Barrett v. Highberger

the sentencing guidelines. Cf. Fritz v. Amsberry, 315 Or App

213, 216, 500 P3d 20 (2021) (explaining that, for that case,

it was “a circumstance in which due process would require

judicial enforcement of an ‘unfulfillable’ promise in a plea

agreement”).5 We consider the evidence in the light most

favorable to petitioner as the nonmoving party, and here,

because there is nothing in the judgment that would defin-

itively suggest that the sentencing guidelines would not

apply—or what the board would do if it found that petitioner

was capable of rehabilitation—the judgment, as a factual

matter, is sufficiently ambiguous as to petitioner’s sentence

to foreclose summary judgment. Accordingly, because there

is a genuine issue of material fact as to whether the sentenc-

ing guidelines apply to petitioner’s sentence and thus there

is a question of fact as to whether petitioner could reason-

ably have raised the claim prior to the board applying the

matrix in 2021, the post-conviction court erred in granting

summary judgment on the escape-clause issue.

Turning to petitioner’s second assignment of error,

he contends that the post-conviction court erred in denying

his request to submit additional evidence in response to the

state’s reply to its motion for summary judgment. Because

we are reversing the grant of summary judgment, petitioner

will have an opportunity to present evidence at the hearing,

and we need not address his second assignment of error.

Finally, in his third assignment of error, petitioner

asserts that the post-conviction court erred in denying his

claim that his robbery verdict should merge into his aggra-

vated murder conviction when it concluded that he could

reasonably have raised his claim earlier. Specifically, peti-

tioner maintains that he could not have brought his claim

before 2020 when the Supreme Court’s decision in Martinez

overruled the footnote in Barrett that prevented merger of

the robbery verdict. The superintendent remonstrates that

5

The superintendent argues that Fritz is distinguishable and that it was

incorrectly decided. The superintendent further maintains that, because peti-

tioner could reasonably have raised his claim earlier, we need not address the fac-

tual question as to whether the state had promised petitioner that the sentencing

guidelines would apply. Although the parties dispute the applicability of Fritz,

we need not address those arguments because the superintendent did not develop

an argument on that issue and because we need not answer those questions to

resolve the narrow issues in this case.

Cite as 349 Or App 680 (2026) 689

petitioner could have brought his claim before the final deci-

sion in Barrett was issued because whether his robbery ver-

dict and an aggravated murder verdict should merge was an

open question. See Perez v. Cain, 367 Or 96, 112, 473 P3d 540

(2020) (concluding that the petitioner could reasonably have

raised an open question of statutory construction before

case law decided the question). In the superintendent’s view,

because Barrett was petitioner’s “direct appeal, it had not

been issued at the time that petitioner filed his brief in that

case. It therefore did not stand in the way of him arguing in

his brief before the Oregon Supreme Court that his robbery

count should merge into his aggravated-murder conviction.”6

In contrast to petitioner’s first assignment of error,

whether petitioner’s claim raised by his third assignment

of error falls into the escape clause is a pure question of

law because its resolution depends on the state of the law

at the time of petitioner’s claims, and not on factual circum-

stances. We conclude that, as a matter of law, petitioner’s

claim satisfies the escape clause because petitioner could

not have brought his claim that his robbery verdict should

merge with an aggravated murder verdict until after the

decision in Martinez.

After the trial court issued the first judgment—in

which the robbery verdict was merged with an aggravated

murder verdict—petitioner appealed from that judgment.

During the time that petitioner’s case was pending appeal,

the operative judgment reflected that his robbery verdict

had merged with an aggravated murder verdict. It was not

until the judgment on remand—which followed the Supreme

Court’s decision in Barrett—that petitioner’s robbery verdict

was not merged with an aggravated murder verdict. Given

that series of events, we disagree with the superintendent’s

argument that Perez applies. Here, whether petitioner’s ver-

dicts should merge was not an open question of law because

his verdicts, at the time of the appeal, had already been

merged. Therefore, petitioner would have had no reason to

6

To the extent that the superintendent argues that petitioner raised his

merger argument in the direct appeal and therefore it is barred by judicial

estoppel, we do not address that contention because it was not “ ‘raised in the

motion’ for summary judgment.” Eklof, 360 Or at 731 (quoting Two Two v. Fujitec

America, Inc., 355 Or 319, 325, 325 P3d 707 (2014)).

690 O’Neil-Barrett v. Highberger

make a claim either in his direct appeal or in a post-conviction

case that his robbery verdict should merge, because it had

already merged (and then, later, was un-merged). The judg-

ment after remand did not merge the robbery verdict, pur-

suant to Barrett, and therefore, it followed the applicable law

at the time. Following Barrett, petitioner would not reason-

ably have had a claim that the robbery verdict should merge

because any such argument would have been in direct con-

tradiction with a Supreme Court decision in his own case.

In short, petitioner would not reasonably have been

aware of a post-conviction claim until Martinez was decided

and disavowed the footnote in Barrett.7 Therefore, because

petitioner’s claim raised by his third assignment of error

satisfies the escape clauses, the post-conviction court erred

in granting summary judgment to the superintendent.

Reversed and remanded.

7

The superintendent asks us to affirm on the alternative basis that Martinez

does not apply to petitioner’s case. That argument, however, was not raised in

the superintendent’s motion for summary judgment and therefore is not a proper

basis to affirm the post-conviction court’s judgment. See Eklof, 360 Or at 736 (not-

ing that, because a post-conviction petitioner was required to address only the

issues raised in the superintendent’s summary judgment motion, a new basis for

summary judgment “did not provide an alternative basis to affirm on appeal”).

As noted earlier, our role on appeal is to determine whether the post-conviction

court erred in granting summary judgment. Because we have concluded that

petitioner’s claim falls within the escape clause and thus that the court erred in

granting summary judgment, we remand the case to the post-conviction court

for consideration of the parties’ arguments, which may include whether Martinez

applies to petitioner’s case.