The opinion
ROSSMAN, J.,
dissenting.
I do not believe that the majority opinion holds together. To begin with, it may be based on a faulty premise. It is difficult to say from petitioner’s brief whether he seeks a conditional release or a complete discharge. At the hearing, petitioner’s attorney stated his position:
“My — at this time my client is requesting that he be discharged or, in the alternative, that he be found appropriate for conditional release and allowed 90 days within which to prepare and submit a conditional release plan for your review.” (Emphasis supplied.)
However, on appeal, petitioner’s assignment of error specifically refers to the proceeding as a request for discharge:
“[PSRB] erred in denying [petitioner’s] request for discharge, by finding that Petitioner was affected by a mental disease or defect.” (Emphasis supplied.)
*585 That is much more than a mere semantic difference. The terminology used by petitioner is very significant in one important particular: allocation of the burden of proof. If this were an initial hearing under ORS 161.341(7)(a), in which petitioner was seeking a conditional release, the burden would have been on the state to show that petitioner continued to be affected by a mental disease or defect. OAR 859-50-055(1), (4). 1 Given what it perceives to be equivocal medical and psychiatric testimony, the majority has concluded that the state did not prove the continuing existence of a mental disease or defect. If, on the other hand, this was a hearing on petitioner’s application for discharge under ORS 161.341(4) —which I think it probably was —petitioner would have had the burden to prove that he no longer suffered from the mental disease or defect that originally caused him to be placed under PSRB’s jurisdiction. See n 1, supra; ORS 161.341(5); Baldwin v. PSRB, 97 Or App 367, 371 , 776 P2d 577 (1989). On what the majority has characterized as a tentative record, petitioner likewise would not have carried his assigned burden.
Assuming, for the sake of argument, that the majority has correctly assigned the burden of proof, I believe that petitioner still loses because of an even more fundamental flaw. He did not argue at the hearing that he is no longer affected by the mental disease or defect that resulted in his commitment. Instead, he contended there, and here, that he has never suffered from any type of mental disease or defect and that his attorney did not explain the consequences of making that defense at trial. 2 In Martin v. PSRB, 103 Or App *586 385, 388 , 797 P2d 401 (1990), rev’d on other grounds 312 Or 157 , 818 P2d 1264 (1991), a post-conviction decision, we held that a contention that the petitioner’s condition was, and always has been, a personality disorder rather than a disease or defect, was an “impermissible collateral attack on the determination that was made by the trial court that ordered the commitment.” The Supreme Court disagreed with our understanding of the petitioner’s argument and reversed, concluding that the petitioner did not actually challenge the trial court’s determination, but simply argued that his condition had changed as of the time of the hearing. 312 Or at 164 . On that point, therefore, Martin was reversed on a factual determination. However, the basic rule from our decision in Martin remains: At a post-commitment hearing, the petitioner may not collaterally attack the original determination of the trial court by claiming that he has never actually suffered from the mental condition that he claimed at trial must entitle him to an insanity defense. Instead, he must show that he no longer suffers from that condition. Because petitioner clearly failed to make that showing, he loses.
When all is said and done, it looks to me that the real thrust of this appeal is petitioner’s claim that he was denied effective assistance of counsel. If that is so, he clearly has chosen the wrong forum to litigate that question.
For any or all of the above reasons, I would affirm PSRB’s order. Accordingly, I must respectfully dissent.
OAR 859-50-055(1) provides:
“The standard of proof on all issues at hearings of the Board shall be the preponderance of the evidence. The burden of proof shall depend on the type of hearing-.
“(1) Initial 90-day hearing under ORS 161.341(7)(a): The state has the burden to show the person continues to be affected by a mental disease or defect and continues to be a substantial danger to others.
“(4) Hospital patient’s request for conditional release or discharge under ORS 161.341(4): The person has the burden of proving his or her fitness for conditional release or discharge.” (Emphasis supplied.)
At the hearing, petitioner testified:
PSRB: “[Petitioner], you’re taking the position now that you’re not suffering from a mental disease or defect?
*586 PETITIONER: “Yes....
PSRB: “Pardon me?
PETITIONER: "Or ever have.
PSRB: “Well, you entered a plea in this case, did you not?
PETITIONER: “Yeah, I wasn’t explained the entirety of it by my attorney. If he would’ve explained it completely, I would’ve stayed where I was ‘cause I was looking at a nine-month period of time in Ijail] as the maximum for this. And what he told me when he made these arrangements was that I would be in here for a short period of time, about a five-day to a five-month at the most period of time.* * *” (Emphasis supplied.)