Dillard v. Premo

No. 54 October 19, 2017 41

IN THE SUPREME COURT OF THE

STATE OF OREGON

CARVEL GORDON DILLARD,

Petitioner on Review,

v.

Jeff PREMO,

Superintendent,

Oregon State Penitentiary

Respondent on Review.

(CC 10C22490; CA A156063; SC S064028)

On review from Court of Appeals.*

Argued and submitted March 3, 2017, at Willamette

College of Law, Salem, Oregon.

Jed Peterson, O’Connor Weber LLC, Portland, argued

the cause and filed the brief for the petitioner on review.

Erin K. Galli, Assistant Attorney General, Salem,

argued the cause and filed the brief for the respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Nakamoto, and Flynn, Justices.**

WALTERS, J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

Balmer, C. J., dissented and filed an opinion, in which

Landau, J., joined.

______________

**  Appeal from Marion County Circuit Court, Dale W. Penn, Judge. 276 Or

App 65, 366 P3d 797 (2016)

**  Baldwin, J., retired March 31, 2017, and did not participate in the consid-

eration of this case. Brewer, J., retired June 30, 2017, and did not participate in

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

decision of this case.

42 Dillard v. Premo

Case Summary: The post-conviction court dismissed petitioner’s petition for

relief as meritless under ORS 138.525(2) for failing to state a claim upon which

post-conviction relief may be granted, but it did so without a hearing. Petitioner

appealed that court’s designation of his judgment as being “with prejudice,” argu-

ing that a dismissal without a hearing must be “without prejudice.” The Court of

Appeals dismissed the appeal pursuant to ORS 138.525(3), which provides that

a meritless petition is not appealable. Held: ORS 138.525(3) does not preclude an

appellate court from correcting a post-conviction court’s erroneous designation of

a judgment entered without counsel or a hearing as being “with prejudice.”

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings.

Cite as 362 Or 41 (2017) 43

WALTERS, J.,

ORS 138.525 governs the dismissal of meritless

post-conviction petitions. ORS 138.525(4) requires that a

dismissal be “without prejudice” if a meritless petition is dis-

missed without a hearing. In this case, the post-conviction

court failed to conduct a hearing, but nevertheless dismissed

the case “with prejudice.” Petitioner appealed the judgment

to the Court of Appeals. In that court, defendant—who is the

superintendent of the Oregon State Penitentiary—conceded

that the post-conviction court had erred but contended that

the appellate court did not have jurisdiction to correct the

error because ORS 138.525(3) provides that a judgment dis-

missing a meritless petition is not appealable. The Court of

Appeals agreed and dismissed the appeal. Dillard v. Premo,

276 Or App 65, 67, 366 P3d 797 (2016). Petitioner now seeks

review of that decision in this court.1 We conclude that the

legislature did not intend to preclude appellate correction of

the post-conviction court’s error. We reverse the decision of

the Court of Appeals and remand to that court for further

proceedings.

Petitioner was charged with four counts of sex-

ual abuse in the second degree and four counts of prosti-

tution. The indictment alleged crimes against two victims.

Petitioner was not represented by counsel at trial. A jury

found petitioner not guilty of the counts involving one of the

victims, but found petitioner guilty of two counts involv-

ing the other victim. Petitioner unsuccessfully pursued a

direct appeal. State v. Dillard, 233 Or App 510, 226 P3d 130,

rev den, 348 Or 461 (2010).

Petitioner then filed a timely pro se petition for

post-conviction relief. He alleged (1) prosecutorial miscon-

duct that, he claimed, violated his federal rights to a fair

trial and due process under Brady v. Maryland, 373 US 83,

83 S Ct 1194, 10 L Ed 2d 215 (1963), and that could not

reasonably have been raised and preserved before or during

his trial proceedings; (2) trial court errors, including denial

1

After merits briefs were filed in this case, petitioner filed a pro se motion

asking this court to declare ORS 138.525 unconstitutional. That issue is beyond

the scope of the question allowed for review, and we deny the motion without fur-

ther discussion.

44 Dillard v. Premo

of appointed counsel, that, he alleged, could not effectively

have been raised and preserved during the trial proceed-

ings; (3) ineffective assistance of appellate counsel; and

(4) actual innocence. Defendant filed a motion pursuant

to ORCP 21 A(8) to dismiss the petition for failure to state

ultimate facts sufficient to constitute post-conviction claims.

Defendant contended that petitioner’s 36-page handwritten

petition identified the “facts of the case” but made no cog-

nizable legal claims; that petitioner “was aware” of the facts

that he alleged and reasonably could have litigated them at

the time of trial; that his claims of inadequate assistance

of appellate counsel stated only what counsel had failed to

do and not “ultimate facts,” and did not articulate how the

failures prejudiced petitioner; and that actual innocence is

not a claim for relief under Oregon law.

Petitioner was represented by counsel at that time,

and, although the pro se petition at issue requested a hear-

ing, counsel did not request a hearing on defendant’s motion,

and, as defendant recognizes, the post-conviction court did

not grant a hearing. Instead, the court found defendant’s

arguments persuasive, adopted them, and granted defen-

dant’s motion. Subsequently, the court entered a general

judgment dismissing the action “with prejudice.” As defen-

dant concedes, dismissal of the action “with prejudice” was

error. ORS 138.525(4). The question before us is whether, as

defendant argues, ORS 138.525(3) bars an appellate court

from correcting that error.

ORS 138.525 provides:

“(1)  The court may, on its own motion or on the motion

of the defendant, enter a judgment denying a meritless

petition brought under ORS 138.510 to 138.680.

“(2)  As used in this section, ‘meritless petition’ means

one that, when liberally construed, fails to state a claim

upon which post-conviction relief may be granted.

“(3)  Notwithstanding ORS 138.650, a judgment dis-

missing a meritless petition is not appealable.

“(4)  A dismissal is without prejudice if a meritless

petition is dismissed without a hearing and the petitioner

was not represented by counsel.”

Cite as 362 Or 41 (2017) 45

In interpreting that statute, our objective is to discern legis-

lative intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009). To do so, we examine a statute’s text, context, and

legislative history, generally beginning with its text. Id. at

171-72.

In this case, defendant argues that the text is

unambiguous: ORS 138.525(2) defines a “meritless peti-

tion” as one that, “when liberally construed, fails to state

a claim upon which post-conviction relief may be granted.”

ORS 138.525(3) provides that “a judgment dismissing a

meritless petition is not appealable.” That plainly means,

defendant asserts, that, when a post-conviction court grants

a motion to dismiss a petition as meritless, and a judgment

of dismissal is entered, no appeal may be taken. In defen-

dant’s view, subsection (3) explicitly bars appeal not only of

a court’s decision to grant a motion to dismiss a petition as

meritless but also of all other rulings in the case, such as the

ruling that is the focus of this appeal—the ruling that the

dismissal is “with prejudice.”

Petitioner responds that subsection (3) cannot be

read in isolation. Petitioner argues that subsection (3) can

be read to bar an appeal of a judgment only when a post-

conviction court enters a judgment in accordance with sub-

section (4), either dismissing the petition “without prejudice”

or, if “with prejudice,” after appointing counsel and con-

ducting a hearing. Petitioner’s argument raises questions

about the meaning that the legislature intended to give to

the terms used in subsection (3). That is, instead of having

their ordinary meanings, the terms “judgment,” and “judg-

ment dismissing,” could be used in subsection (3) to refer

only to a judgment or dismissal entered in accordance with

subsection (4). Read in that way, a judgment dismissing a

meritless petition “without prejudice” would not be appeal-

able, regardless of whether counsel had been appointed or

a hearing had been held, but a judgment dismissing a mer-

itless petition “with prejudice” would be appealable if those

protections had not been afforded.

To help us determine whether ORS 138.525 is as

clear as defendant argues and to provide additional context,

we consider two relevant cases construing that statute. See

46 Dillard v. Premo

State v. McAnulty, 356 Or 432, 441, 338 P3d 653 (2014) (in

determining legislative intent, “[w]e also consider this court’s

prior construction of the statutes at issue”). In Ware v. Hall,

342 Or 444, 446-47, 154 P3d 118 (2007), as in this case, a

petitioner represented by counsel filed a petition for post-

conviction relief, and, without a hearing, the post-conviction

court dismissed the petition “with prejudice.”2 The court

interpreted subsection (1) of ORS 138.525 to grant a post-

conviction court authority to summarily dismiss a meritless

petition. Id. at 451-52. However, the court also looked to sub-

section (4) as providing important context and as limiting a

court’s exercise of its authority under subsection (1). Id. The

court interpreted ORS 138.525 as precluding a court from

dismissing a post-conviction petition “with prejudice” if the

petitioner had not been afforded a hearing. Id. at 452-53.

Thus, Ware provides some support for petitioner’s argument

that, in interpreting subsection (3) of the same statute, we

not only must look to the text of that subsection, but we also

must give effect to subsection (4).

Weighing against that argument and interpreta-

tion, defendant contends, is this court’s decision in Young

v. Hill, 347 Or 165, 173, 218 P3d 125 (2009), characteriz-

ing ORS 138.525 as “unambiguous.” In Young, the question

before the court was the basis for the post-conviction court’s

ruling; that is, the question was whether the court had dis-

missed the petition because it failed to state a claim and

therefore was meritless or whether the court had reached the

merits of the stated claim and nevertheless had dismissed

it. Id. at 169-70. The court decided that a post-conviction

court need not expressly state that a petition is meritless for

ORS 138.525, including the bar on appeals, to apply; rather,

“[t]he only question is whether, in fact, that is the ground

on which the * * * court dismissed the petition.” Id. at 171.

It was in that context that the court said, “[t]he statute is

unambiguous: petitions that fail to state a claim are mer-

itless, and a judgment dismissing a petition as meritless is

not appealable.” Id. at 173.

2

Although Ware involved the interpretation and application of ORS 138.525,

the issue of appealability was not raised, and thus, this court did not address the

issue that arises in this case.

Cite as 362 Or 41 (2017) 47

In this case, however, the question is not whether

the post-conviction court considered the petition to be mer-

itless, but whether the legislature intended to bar appeals

of judgments that are not entered in accordance with ORS

138.525(4). We find it significant that, in Young, the court

stated that the legislative history of ORS 138.525 reveals

that “the legislature meant exactly what it said—that a

meritless post-conviction petition was one that failed to

state a claim, and that there would be no right to appeal

the dismissal of such a petition, when the petitioner was

represented by counsel.” Young, 347 Or at 174 n 8 (emphasis

added). Young raises, rather than addresses, the question

that this case presents: whether the legislature intended to

foreclose appeal when a post-conviction court fails to either

appoint counsel or hold a hearing in accordance with ORS

138. 525(4), but nevertheless enters a judgment dismissing

a petition with prejudice.

We therefore turn, as the court did in Young, to leg-

islative history for assistance. That history demonstrates

that, in enacting the bill that became ORS 138.525, the

legislature intended to preclude appeal of a post-conviction

court’s determination that a post-conviction petition fails to

state a claim for relief, but only after the petitioner has had

a fair opportunity to argue that issue in the post-conviction

court with counsel and after a hearing. The bill’s proponents

explained that, when a petitioner had not had counsel or

a hearing, they intended that any dismissal be “without

prejudice.” Tape Recording, House Committee on Judiciary,

Subcommittee on Crime and Corrections, HB 2352, Apr 7,

1993, Tape 71, Side A (statements of Ross Shepard, Rep

Kevin Mannix, and Assistant Attorney General Brenda

Peterson). Accordingly, subsection (4) was added to the bill

to provide that a petition that was dismissed without coun-

sel or a hearing would be “without prejudice” and could be

refiled, thereby preserving a petitioner’s right to have argu-

ments about the merits of the petition fairly considered. One

of the bill’s proponents explained that “what we’re trying to

get at with the dismissal without prejudice are these cases

where the * * * judge dismisses the petition without an attor-

ney being appointed for these petitioners and does so before

there’s ever any evidence or any hearing, the judge simply

48 Dillard v. Premo

sees the petition and dismisses it because it doesn’t state

a ground for relief.” Tape Recording, House Committee on

Judiciary, Subcommittee on Crime and Corrections, HB

2352, Apr 7, 1993, Tape 71, Side A (statement of Peterson).

The legislature permitted the dismissal of that narrow

group of cases, but it also recognized that dismissal in those

circumstances does not necessarily reflect whether the case

has merit and therefore allowed the petition to be refiled

and more carefully considered.3 That legislative intent to

provide a remedy for dismissal without a hearing does not

support an interpretation of ORS 138.525 that would permit

a post-conviction court to both deny a hearing and preclude

the remedy that the statute expressly provides. In fact, it

would fly in the face of that legislative intent to interpret

ORS 138.525 to preclude an appellate court from correcting

a post-conviction court’s error in doing so.

The text of ORS 138.525(3) makes the question a

close one. However, when we read all of the provisions of

ORS 138.525 together, as we did in Ware, and when we con-

sider the legislative history, we conclude that ORS 138.525

does not bar appeal of a judgment entered without the bene-

fit of counsel or a hearing, unless the judgment is entered in

accordance with subsection (4) as a judgment “without prej-

udice.” The legislature did not intend to preclude an appel-

late court from correcting a post-conviction court’s errone-

ous designation of a judgment entered without counsel or a

hearing as being “with prejudice.”

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.

BALMER, C. J., dissenting.

I understand the majority’s diligent effort to find a

basis for petitioner to appeal the post-conviction judgment

3

We do not agree with the dissent that this case is “entirely unlike” that

narrow class of cases. 362 Or at ___ (Balmer, C. J., dissenting). Here, although

the post-conviction court appointed counsel for defendant, it did not, as defen-

dant recognizes, hold a hearing under ORS 138.620. See Ware, 342 Or at 453

(explaining that court may either hold hearing under ORS 138.620 and dismiss

with prejudice, or dismiss without such a hearing, but only if it dismisses without

prejudice).

Cite as 362 Or 41 (2017) 49

at issue in this case. After all, the legislature has stated—

expressly, if inartfully—that the dismissal of a meritless

post-conviction petition “is without prejudice” if the petition

“is dismissed without a hearing and the petitioner was not

represented by counsel.” ORS 138.525(4). The meritless

petition here was dismissed after briefing in which peti-

tioner was represented by counsel, but it was dismissed

without a hearing, and it was dismissed “with prejudice.”

That was error. The majority’s effort, however, runs directly

into the legislature’s even more explicit directive that “a

judgment dismissing a meritless petition is not appeal-

able.” ORS 138.525(3). The majority’s attempt to find a way

around that unambiguous text is unpersuasive to me, and I

therefore respectfully dissent.

The essential facts are few and undisputed.

Petitioner filed a pro se petition for post-conviction relief,

and the court appointed counsel to represent him. Defendant

filed and briefed a motion pursuant to ORCP 21 A(8) to dis-

miss the petition for failure to state a claim. Counsel for

petitioner filed a response. Neither party requested oral

argument on the motion. Without holding a hearing, the

post-conviction court granted the motion and later entered

a general judgment dismissing the action “with prejudice.”

Petitioner appealed the judgment to the Court of Appeals,

which dismissed the appeal for lack of jurisdiction, based on

ORS 138.525(3), quoted above. Dillard v. Premo, 276 Or App

65, 67, 366 P3d 797 (2016).

Both parties also agree, or at least do not dispute

for present purposes, that (1) the petition here was “merit-

less” under ORS 138.525(2) because, “when liberally con-

strued, [the petition] fail[ed] to state a claim upon which

post-conviction relief may be granted”; and (2) the post-

conviction court erred in dismissing the petition with prej-

udice because ORS 138.525(4) provides that, if the dis-

missal occurred without a hearing, it is “without prejudice.”

The sole question here therefore is whether the judgment

of dismissal can be appealed, particularly in light of ORS

138.525(3), which, as noted, provides that “a judgment dis-

missing a meritless petition is not appealable.”

50 Dillard v. Premo

The majority cites Ware v. Hall, 342 Or 444, 451, 154

P3d 118 (2007), as providing support for using subsection

(4) to interpret subsection (3) to bar an appeal only when a

judgment is consistent with subsection (4). But Ware does

not address ORS 138.525(3) at all, and the question of the

appealability of a judgment dismissing a meritless petition,

when that judgment is inconsistent with ORS 138.525(4),

was never raised in that case. More to the point, the statute

does not state that a judgment must be consistent with ORS

138.525(4) to be subject to the bar on appeals. The statute

expressly defines a “meritless petition” in subsection (2), and

that subsection makes no reference to dismissal with or with-

out prejudice. Neither does the subject of subsection (3)—

the nonappealability of “a judgment dismissing a meritless

petition”—refer to subsection (4) or to whether the judgment

dismissing the meritless petition was with or without preju-

dice. Put differently, the definition of “meritless petition” in

subsection (2), which applies to both subsections (3) and (4),

and which appears to constitute a completed thought about

the kind of petition that is meritless, strongly suggests that

the legislature did not intend the requirements in subsection

(4) regarding a dismissal with or without prejudice to limit

or further define the term “meritless petition.” See PGE v.

Bureau of Labor and Industries, 317 Or 606, 614, 859 P2d

1143 (1993) (“The legislature knows how to include qualify-

ing language in a statute when it wants to do so.”). Whether

a judgment dismissing a meritless petition complies with

the requirements of ORS 138.525(4) or states that the dis-

missal is with or without prejudice does not affect whether

the petition is “meritless” for purposes of ORS 138.525 and,

therefore, whether the bar on appeal applies. Ware does not

support the majority’s holding.

While relying on a case that is inapposite, the

majority downplays this court’s unequivocal statement in

Young v. Hill, 347 Or 165, 218 P3d 125 (2009), explaining

the effect of a dismissal of a meritless petition:

“[T]he statute is unambiguous: petitions that fail to state a

claim are meritless, and a judgment dismissing a petition as

meritless is not appealable. * * *

Cite as 362 Or 41 (2017) 51

“The policy that the legislature has adopted * * * is an

unqualified one—no appeal lies from any judgment dis-

missing a petition for post-conviction relief for failure to

state a claim.”

Id. at 173-74 (emphasis added). Young did not involve the

“with prejudice/without prejudice” issue presented here,

but this court’s opinion accurately observed that the bar

on appeals of meritless petitions was “unambiguous,” and

the majority fails to demonstrate why that conclusion is not

fatal to petitioner’s argument here.

The majority also errs by conflating the issues of

appealability and reviewability. As we stated in State v.

Montgomery, 294 Or 417, 657 P2d 668 (1983):

“Appealability generally is concerned with whether an

appeal can be taken at all. Usually, but not always, appeals

lie only from final judgments and orders. Reviewability gen-

erally involves the consideration of a variety of rulings and

orders made by the court, usually before judgment.”

Id. at 420 (emphases in original). Certainly, here, as in other

contexts, if the judgment is appealable, the appellate court

often can review the validity of various prejudgment rulings

or orders by a post-conviction court. But that fact should not

obscure the threshold issue of whether the final judgment is

appealable at all. Here, it is not.

Petitioner relies on the interpretive rule in ORS

174.010, that, “where there are several provisions * * * such

construction is, if possible, to be adopted as will give effect

to all.” Petitioner contends that, if we allow the bar on

appeals to apply even when the post-conviction court has

failed to comply with ORS 138.525(4), then the “legislature’s

enactment of [that statute] would be rendered advisory.” He

warns that courts could “routinely violate the law and enter

an unlawful judgment, but the case would be immune from

appellate review.”

Petitioner is incorrect. Petitioner had other oppor-

tunities to assert his right to have his meritless petition

dismissed without prejudice under ORS 138.525(4) on the

ground that the post-conviction court did not conduct a

hearing. First, petitioner could have objected to the proposed

52 Dillard v. Premo

order and judgment submitted by defendant, which included

the “with prejudice” wording, before the post-conviction

court signed it. See UTCR 5.100(1) (requiring a party pre-

paring a proposed judgment to provide opposing party

with opportunity to object). Second, after entry of the judg-

ment, petitioner could have moved the court to correct its

error under ORCP 71 B. Given the clear mandate of ORS

138.525(4) that the dismissal of a petition as meritless is

to be without prejudice unless the petitioner has counsel

and the post-conviction court holds a hearing, I assume that

the post-conviction court would have corrected its error,

had it been brought to that court’s attention. Finally, in the

absence of an adequate remedy by appeal, petitioner could

have sought to raise the issue of the post-conviction court’s

failure to comply with ORS 138.525(4) by filing a petition

for a writ of mandamus under ORS 34.250. But petitioner

did none of those things, and instead appealed the judgment

and collided headfirst with ORS 138.525(3).

The majority and petitioner both look to the legis-

lative history of ORS 138.525(4) and assert that the legis-

lature wanted a petition to be dismissed without prejudice

only when the petitioner was represented by counsel and

had a hearing. I agree, and so does defendant. But that is

not the issue before us. The issue here is whether such a

petition that is erroneously dismissed with prejudice is

appealable under ORS 138.525(3). Neither the majority nor

petitioner points to any legislative history that suggests that

subsection (3) means anything other than what it says: “[A]

judgment dismissing a meritless petition is not appealable.”

Indeed, none of the legislative history they discuss relates to

subsection (3) at all.

The majority identifies one example from the leg-

islative history of the kind of unconsidered post-conviction

court dismissal that subsection (4) would require to be made

without prejudice: “[T]hese cases where the * * * judge dis-

misses the petition without an attorney being appointed

for these petitioners and does so before there’s ever any

evidence or any hearing, the judge simply sees the petition

and dismisses it because it doesn’t state a ground for relief.”

362 Or __ (quoting Tape Recording, House Committee on

Judiciary, Subcommittee on Crime and Corrections, HB

Cite as 362 Or 41 (2017) 53

2352, Apr 7, 1993, Tape 71, Side A (statement of Assistant

Attorney General Brenda Peterson)). Again, that statement

merely supports the undisputed interpretation of subsection

(4). It says nothing about whether an erroneous judgment

can be appealed. Moreover, the example is entirely unlike

the circumstances here. In this case, the post-conviction

court did not simply dismiss the petition sua sponte.

Rather, it appointed counsel for petitioner. Counsel filed an

amended petition, although it was later withdrawn because

of disagreements between counsel and petitioner. Defendant

then filed a motion to dismiss. Counsel for petitioner filed

a response. Neither party requested oral argument on the

motion. The post-conviction court considered the motion and

response, agreed with the defendant’s arguments, sent a let-

ter to the parties setting out its ruling, and later issued an

order and a judgment embodying its decision. This is not

the kind of case that was referred to in the quotation from

the legislative history—and, even if it were, the testimony

quoted is silent on the right to appeal.

The majority concludes its opinion by focusing, once

again, on subsection (4) and asserting that because the leg-

islature intended to “provide a remedy for dismissal with-

out a hearing,”1 it would interfere with that intent “to pre-

clude an appellate court from correcting a post-conviction

court’s erroneous designation of a judgment entered with-

out counsel or a hearing as being ‘with prejudice.’ ” 362 Or

__. With respect, the majority fails to demonstrate how the

intent manifested in subsection (4) can control the emphatic

text of subsection (3), barring the appeal of a meritless

petition. And, in fact, there is nothing extraordinary about

the legislature not providing for an appeal in these circum-

stances. As we have often said, “It is a well-settled principle

1

We also should be clear about what kind of “hearing” would have sufficed

here to comply with subsection (4). Petitioner does not suggest that defendant’s

motion to dismiss was an inappropriate vehicle for defendant to present its posi-

tion, or that the granting of a motion to dismiss would be inappropriate (if correct

on the merits) as the basis for a final judgment in a post-conviction proceeding.

The “hearing” on defendant’s motion would not have been an evidentiary hear-

ing, but, rather, an oral argument by counsel for petitioner on the merits of the

motion, lasting at most an hour or so, and, more likely, 10 or 15 minutes. Nothing

in the record suggests that oral argument would have added anything to the

written materials upon which the post-conviction court based its ruling.

54 Dillard v. Premo

that ‘[a] party does not have an inherent right to appellate

court review; the right to appeal is wholly statutory and an

appellant must establish that the decision from which the

appeal is taken is appealable under some statutory provi-

sion.’ ” State v. Cloutier, 351 Or 68, 74, 261 P3d 1234 (2011)

(quoting Waybrant v. Bernstein, 294 Or 650, 653, 661 P2d

931 (1983)). The legislature has provided a statutory right

to appeal from a judgment in a post-conviction proceeding,

ORS 138.650, but it could not have been more clear when it

enacted ORS 138.525(3) and carved out an exception to that

right: “Notwithstanding ORS 138.650, a judgment dismiss-

ing a meritless petition is not appealable.”

The majority and petitioner make reasonable

arguments that it would be appropriate and fair to have

appellate review of a judgment dismissing a meritless post-

conviction petition when that dismissal is inconsistent with

ORS 138.525(4). I agree. However, the post-conviction court,

having considered defendant’s motion to dismiss and the

briefs of counsel for defendant and for petitioner, dismissed

the petition as meritless; therefore, in the words of ORS

138.525(3), the judgment is “not appealable.” I would affirm

the order of the Court of Appeals dismissing petitioner’s

appeal.

Landau, J., joins in this dissenting opinion.