Ingle v. Matteucci

No. 27 October 12, 2023 413

IN THE SUPREME COURT OF THE

STATE OF OREGON

Matthew Daniel INGLE,

Petitioner on Review,

v.

Dolores MATTEUCCI,

Superintendent, Oregon State Hospital,

Respondent on Review.

(CC 18CV09971) (CA A170009) (SC S069222)

On review from the Court of Appeals.*

Argued and submitted September 30, 2022.

Lindsey Burrows, O’Connor Weber LLC., Portland,

argued the cause and filed the briefs for petitioner on review.

Jordan R. Silk, Assistant Attorney 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.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,

and James, Justices, and Balmer and Walters, Senior Judges,

Justices pro tempore.**

DUNCAN, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to that court for further proceedings.

Garrett, J., dissented and filed an opinion, in which

Balmer, S.J., joined.

______________

* Appeal from Marion County Circuit Court, Lindsay Partridge, Judge. 315

Or App 416, 501 P3d 23 (2021).

** Nelson, J., resigned February 25, 2023, and did not participate in the deci-

sion of this case. Bushong and Masih, JJ., did not participate in the consideration

or decision of this case.

414 Ingle v. Matteucci

Cite as 371 Or 413 (2023) 415

DUNCAN, J.

This case concerns the statute of limitations for

petitions for post-conviction relief, ORS 138.510(3). That

statute includes a limitations period and an exception to

that period. It provides that a petition “must be filed within

two years” of the date the challenged conviction became

final unless the ground for relief “could not reasonably have

been raised” within those two years. The exception to the

time limit is commonly known as the “escape clause.” If a

petitioner files their petition after the limitations period,

the petitioner must establish that the escape clause applies.

That is, the petitioner must establish that their ground for

relief could not reasonably have been raised within two

years of the date their conviction became final.

In the criminal case underlying this post-conviction

case, petitioner waived his right to a jury trial and raised

an insanity defense. The trial court found petitioner “guilty

except for insanity” on all charges and placed him under the

jurisdiction of the Psychiatric Security Review Board and

committed him to the Oregon State Hospital.

More than eight years after his convictions became

final, petitioner initiated this case by filing a pro se petition

for post-conviction relief. Petitioner requested and received

court-appointed counsel, who amended the petition. In the

operative petition, petitioner acknowledged that the lim-

itations period had run but asserted that the escape clause

applied. Specifically, he asserted that the escape clause

applied because, during the limitations period, he was dis-

abled by “diagnosed schizophrenia” and the “forced consump-

tion of extremely powerful psychotropic medications” and that

those conditions “deprived him of the ability” to file a timely

petition. The state1 moved to dismiss the petition, assert-

ing that petitioner’s mental impairments were irrelevant to

1

At the trial-court level, a person who brings a post-conviction case is the

“petitioner” and the adverse party is the “defendant.” ORS 138.570; see, e.g., Bogle

v. State of Oregon, 363 Or 455, 467-69, 423 P3d 715 (2018) (discussing the “peti-

tioner” and the “defendant”). If the petitioner is in custody, the defendant is “the

official charged with the confinement” of the petitioner. ORS 138.570. In this

case, because petitioner is in custody at the Oregon State Hospital, the defendant

is the superintendent of the hospital. For ease of reference, we refer to the super-

intendent as “the state.” See, e.g., Richardson v. Belleque, 362 Or 236, 238 n 1, 406

P3d 1074 (2017) (referring to the superintendent as “the state”).

416 Ingle v. Matteucci

whether the escape clause applied. The post-conviction court

agreed and granted the state’s motion to dismiss.

Petitioner appealed, and, in a split decision, the

Court of Appeals affirmed. Ingle v. Matteucci, 315 Or App 416,

501 P3d 23 (2021). We allowed review. On review, the parties

dispute (1) whether a post-conviction court may consider a

petitioner’s mental impairments when determining whether

the statute of limitations’ escape clause applies and, if so,

(2) whether petitioner’s allegations were sufficient to raise a

triable issue regarding the applicability of the escape clause.

For the reasons explained below, we hold that, in

addition to other circumstances, the escape clause applies

in circumstances where, during the limitations period, the

petitioner had mental impairments that were so severe—

both in degree and duration—that the petitioner was incapa-

ble of raising their ground for relief in a timely petition. We

further hold that the petitioner’s allegations in this case are

sufficient to raise a triable issue regarding the applicabil-

ity of the escape clause. Consequently, we conclude that the

post-conviction court erred in granting the state’s motion to

dismiss on the pleadings, and we reverse and remand to the

post-conviction court for further proceedings.

I. BACKGROUND

When this court reviews a post-conviction court’s

ruling on a motion to dismiss a petition, we assume that the

allegations in the petition and its attachments are true, and

we state the facts consistently with those allegations. Chavez

v. State of Oregon, 364 Or 654, 656, 438 P3d 381 (2019);

Verduzco v. State of Oregon, 357 Or 553, 555 n 1, 355 P3d 902

(2015).

A. Underlying Criminal Case

In the underlying criminal case, the state charged

petitioner with two counts of second-degree manslaughter

and one count of driving under the influence of intoxicants.

The charges were based on an incident in which petitioner

was driving, ran a red light, and struck another vehicle,

killing its occupants. After the crash, petitioner was trans-

ported to a hospital, where a blood test revealed the pres-

ence of cannabis, an anti-depressant medication, and two

Cite as 371 Or 413 (2023) 417

anti-psychotic medications. When interviewed at the hospi-

tal, petitioner was hallucinating. He said that, during the

crash, he “knew that aliens [were] there and he [thought]

that something else [was] in control of the wheel of the car.”

He attributed the crash to “aliens” or “the Holy Spirit.” The

month before the incident, petitioner, who was 18 years old,

had been self-admitted to three hospital psychiatric wards,

diagnosed with schizophrenia, and prescribed the anti-

psychotic medications that he took on the day of the incident.

In the trial court, petitioner was represented by a

defense lawyer, McCauley. On McCauley’s recommendation,

petitioner waived his right to a jury trial and proceeded to

a stipulated facts trial, during which he raised an insanity

defense pursuant to ORS 161.295. That statute provides that

“[a] person is guilty except for insanity if, as a result of a qual-

ifying mental disorder at the time of engaging in criminal

conduct, the person lacks substantial capacity either to appre-

ciate the criminality of the conduct or to conform the conduct

to the requirements of the law.” ORS 161.295(1). During the

stipulated facts trial, the prosecutor described a report by

a psychologist who had evaluated petitioner and concluded

that it was likely that petitioner “was unable to conform his

conduct to the requirements of the law” at the time of the

crash “because of [his] underlying psychiatric condition.” The

prosecutor agreed with the psychologist’s conclusion, inform-

ing the trial court that, at the time of the crash, petitioner

had been acting pursuant to a “delusional set of beliefs.” The

court found petitioner “guilty except for insanity” on all three

counts, placed him under the jurisdiction of the Psychiatric

Security Review Board for an indefinite period not to exceed

20 years, and committed him to the Oregon State Hospital.

The trial court entered the judgment into the

register on November 10, 2009. Petitioner did not appeal.

Consequently, the two-year limitations period for filing for

post-conviction relief expired on November 10, 2011.

B. Post-Conviction Trial-Level Proceedings

On March 14, 2018, which was more than eight

years after petitioner’s convictions became final, petitioner,

who was in custody at the state hospital, filed a pro se

418 Ingle v. Matteucci

petition for post-conviction relief. Petitioner requested and

received a court-appointed lawyer, Patterson, who amended

the petition twice.

In the operative petition, petitioner alleged that

his convictions were the result of a substantial denial of

his constitutional right to counsel under both Article I,

section 11, of the Oregon Constitution, and the Sixth and

Fourteenth Amendments to the United States Constitution.

Specifically, he alleged that McCauley’s representation

had been inadequate and ineffective because, even though

McCauley knew or should have known about petitioner’s

mental impairments, he had failed to ensure that petitioner

understood the consequences of being found guilty except

for insanity—including that he would likely spend 20 years

at the state hospital—before encouraging him to waive his

right to a jury trial and raise an insanity defense. Petitioner

further alleged that he did not make—and, given his mental

impairments could not have made—a knowing, voluntary,

and intelligent waiver of his right to a jury trial.

In addition to alleging his grounds for relief, peti-

tioner addressed the timing of his petition. He acknowledged

that his petition was untimely but asserted that the escape

clause applied because he could not reasonably have raised

his grounds for relief within the two-year limitations period.

In support of that assertion, petitioner alleged that, during

the limitations period, he was “intellectually disabled as a

result of his diagnosed schizophrenia and his forced con-

sumption of extremely powerful psychotropic medications.”

He further alleged that his mental disease and medicated

state “substantially impaired his ability to concentrate, to

reason, to understand the legal remedies available to chal-

lenge his convictions, and to understand the legal proceed-

ings that resulted in his imposed sentence.” In addition, he

alleged that his mental disease “substantially impaired his

ability to read and comprehend legal documents related to

those proceedings and deprived him of the ability to appreci-

ate, identify, allege, and support with the requisite evidence,

the relevant claims for relief.” In a declaration attached to

the petition, he stated that he filed his pro se petition as

Cite as 371 Or 413 (2023) 419

soon as he was able to comprehend what had occurred in his

underlying criminal case.

The state moved to dismiss the petition, assert-

ing that it was barred by the statute of limitations, ORS

138.510(3). See ORCP 21 A(1)(i) (allowing a party to move to

dismiss a claim before filing an answer on the ground that

“the pleading shows that the action has not been commenced

within the time limited by statute”). The state argued

that, under Court of Appeals case law—including Fisher v.

Belleque, 237 Or App 405, 240 P3d 745 (2010), rev den, 349

Or 601 (2011)—petitioner’s mental impairments were irrele-

vant to whether the escape clause applied.

The post-conviction court granted the state’s motion

to dismiss. The court explained that it believed that cases

decided by the Court of Appeals, including Fisher, precluded

it from considering a petitioner’s mental impairments when

determining whether the escape clause applies. In Fisher,

the petitioner acknowledged that his petition was untimely

but asserted that the escape clause applied because he had

mental illnesses that prevented him from raising his ground

for relief within the limitations period. The Court of Appeals

rejected that argument, holding that whether the escape

clause applies “ ‘turns on whether the information [neces-

sary to raise the ground for relief at issue] existed or was

reasonably available to the petitioner, and not on whether the

petitioner’s failure to seek the information was reasonable.’ ”

Fisher, 237 Or App at 410 (quoting Brown v. Baldwin, 131

Or App 356, 361, 885 P2d 707 (1994) (emphasis in Brown)).

The post-conviction court told petitioner:

“The problem in your case is that my reading of what the

courts that are above me tell me is that * * * just because

you have a mental illness and that mental illness prevents

you from being able to access the legal process, that doesn’t

allow me to apply the exception. * * * So it’s my judgment

that under the law that I [have] to grant the State’s motion

to dismiss.

“Now, you will have an opportunity to have my decision

challenged and reviewed by the Court of Appeals. And I

hope you do because there are some concerns I have about

some of the decisions.”

420 Ingle v. Matteucci

C. Post-Conviction Appeal

Petitioner appealed, arguing that the allegations in

his petition were sufficient to raise a triable issue regarding

whether he “could not reasonably have raised” his grounds

for relief within the two-year limitations period. ORS

138.510(3). The state disagreed, again arguing that, under

Fisher, a post-conviction court may not apply the escape

clause based on an allegation that, as a result of mental

impairments, a petitioner lacked the capacity to file a timely

petition. In reply, petitioner contended that this court’s then-

recent decision in Gutale v. State of Oregon, 364 Or 502, 435

P3d 728 (2019), implicitly overruled Fisher.

The Court of Appeals concluded that Fisher—which

it described as holding “that a petitioner’s diminished capac-

ity due to mental disorders was not relevant to the escape

clause in ORS 138.510(3)”—was on point. Ingle, 315 Or App

at 424-25. The court also rejected petitioner’s argument that

Gutale implicitly overruled Fisher. Id. at 428. It noted that,

on the same day that this court decided Gutale, it decided

Perez-Rodriguez v. State of Oregon, 364 Or 489, 435 P3d 746

(2019), which expressly left open the question “ ‘whether a

petitioner’s mental illness and intellectual disability may

ever justify applying the escape clause’ ” in ORS 138.510(3).

Ingle, 315 Or App at 428 (quoting Perez-Rodriguez, 364 Or

at 498). It also noted that, in its view, Gutale did not involve

consideration of the petitioner’s personal characteristics.

Ingle, 315 Or App at 429 (noting that, although the court

in Gutale considered the petitioner’s “situation,” it “did not

consider any personal characteristics of the petitioner”).

Applying Fisher, the court held that petitioner’s allega-

tions regarding his mental impairments were irrelevant to

whether petitioner “could not reasonably have raised” his

grounds for relief within the limitations period. Id. at 429-

30. Therefore, the court affirmed the post-conviction court’s

dismissal of the petition for failing to allege facts sufficient

to support application of the escape clause. Id. at 430-31.

Judge Tookey dissented. Relying on Gutale, he con-

tended that whether an untimely petition qualifies for the

escape clause depends on whether it asserts a ground for

relief that was not “ ‘reasonably available’ ” to the petitioner

Cite as 371 Or 413 (2023) 421

during the limitations period, which calls for a judgment

about what was reasonable “ ‘under the circumstances.’ ” Id.

at 440 (Tookey, J., dissenting) (quoting Gutale, 364 Or at 509,

513 (emphases in Ingle)). Under Gutale, a determination of

what was reasonable is based on the petitioner’s perspective

because the petitioner is the person who must initiate a post-

conviction case. 364 Or at 519. Based on Gutale and the leg-

islative history of ORS 138.510(3), which establishes that the

legislature intended the escape clause to apply in “extraor-

dinary circumstances,” Judge Tookey would have held that,

“in certain circumstances, a petitioner’s mental illness is rel-

evant to—and can justify application of—the escape clause.”

Ingle, 315 Or App at 432 (Tookey, J., dissenting). He would

have further held that, when invoking the escape clause, “a

petitioner must allege not only the existence of a mental ill-

ness but also some additional fact or facts about how, due to

that mental illness, a reasonable person in the petitioner’s

situation would not have thought to investigate the existence

of the asserted ground for relief during the limitation period.”

Id. at 433. Finally, he would have held that petitioner’s

allegations were sufficient. Id. at 452.2

D. Parties’ Arguments on Review

Petitioner petitioned this court for review, which we

allowed. On review, petitioner argues that mental impair-

ments can justify the application of the escape clause in

ORS 138.510(3), depending on their severity and length.

Petitioner points to the text of the escape clause, which

applies when grounds for relief “could not reasonably have

been raised,” and argues that the legislature’s use of the

words “could” and “raised” indicate that the applicabil-

ity of the escape clause depends on a petitioner’s capacity

to initiate a post-conviction case. Petitioner also relies on

this court’s cases for the proposition that the escape clause

applies when a ground for relief was not “reasonably avail-

able” to a petitioner within the two-year limitations period,

2

The majority stated that, if this court were to overrule Fisher and hold

that a petitioner’s mental impairments must be considered when determining

whether the escape clause in ORS 138.510(3) applies, it “would likely agree with

the dissent that petitioner’s allegations in this case would suffice to create a tri-

able issue,” but that it did not need to decide the issue. Ingle, 315 Or App at 431

n 9.

422 Ingle v. Matteucci

which depends on the petitioner’s particular circumstances.

Gutale, 364 Or at 509-12 (holding that the escape clause

applied to the petitioner’s immigration-related claim where

the petitioner was not on notice that his plea carried immi-

gration consequences); Perez-Rodriguez, 364 Or at 500

(reaching the opposite conclusion where the petitioner was

on notice that his plea carried immigration consequences).

And petitioner contends that the legislature intended the

escape clause to apply in extraordinary circumstances and

to prevent injustice, which supports its application in sit-

uations where, as a result of mental impairments, a peti-

tioner did not have a reasonable opportunity to initiate a

post-conviction case within the limitations period.

The state argues that a petitioner’s mental impair-

ments cannot justify the application of the escape clause in

ORS 138.510(3) for untimely petitions. In support of that

argument, the state points out that the wording of the escape

clause in ORS 138.510(3) was imported from the escape

clause in ORS 138.550(3) for successive post-conviction

petitions, which allows for successive petitions that assert

grounds for relief that “could not reasonably have been

raised” in the petitioner’s initial case. Based on the fact that

the wording of the escape clause for untimely petitions was

imported from the escape clause for successive petitions, the

state makes the following multi-step argument:

(1) the escape clause for successive petitions applies to

claims that could not have been raised in a petitioner’s ini-

tial post-conviction case because they had not accrued yet;

(2) a claim accrues either when a plaintiff discovers

their legal injury or when they reasonably should have dis-

covered it, whichever comes first;

(3) when determining when a plaintiff reasonably

should have discovered a legal injury, courts employ an

objective test and do not consider the plaintiff’s personal

characteristics; and

(4) because the wording of the escape clause in ORS

138.550(3) for successive petitions was imported into the

escape clause in ORS 138.510(3) for untimely petitions, a

court cannot consider a petitioner’s personal characteristics

when determining whether to allow an untimely petition.

Cite as 371 Or 413 (2023) 423

II. DISCUSSION

To resolve the parties’ dispute, we must construe

the statute of limitations for post-conviction petitions, ORS

138.510(3). When construing a statute, our goal is to ascer-

tain the legislature’s intent. To do so, we look to the statute’s

text, context, and legislative history, as well as our prior

constructions of the statute. State v. Haley, 371 Or 108, 112,

531 P3d 142 (2023); State v. Gaines, 346 Or 160, 171-72, 206

P3d 1042 (2009). We begin with the text and our prior hold-

ings regarding the text.

A. Statutory Interpretation

1. Text

In pertinent part, ORS 138.510(3) provides, “A peti-

tion pursuant to ORS 138.510 to 138.680 must be filed within

two years” of the date the challenged conviction becomes

final unless the grounds for relief asserted “could not rea-

sonably have been raised” within the two-year limitations

period.3 Thus, as discussed above, the statute of limitations

includes a two-year limitations period and an escape clause.

The two-year limitations period begins to run on the date

a person’s conviction becomes final, and that date depends

3

ORS 138.510(3) provides:

“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.”

As we explain below, 371 Or at 436-37, because the escape clause in ORS

138.510(3) for untimely petitions was imported from the escape clause in ORS

138.550(3) for successive petitions, it refers to grounds for relief “which could

not reasonably have been raised in the original or amended petition.” (Emphasis

added.) Despite the reference to earlier petitions, this court has held that the

escape clause for untimely petitions is not limited to those preceded by timely

petitions. Bartz v. State of Oregon, 314 Or 353, 839 P2d 217 (1992).

424 Ingle v. Matteucci

on whether the person appeals the conviction. If, as in this

case, a person does not appeal their conviction, the two-

year period begins when the judgment on the conviction is

entered in the register. ORS 138.510(3)(a).

A person seeking post-conviction relief must file a

petition within the two-year limitations period unless the

petition qualifies for the escape clause, that is, unless the

petition asserts grounds for relief that “could not reasonably

have been raised” within the two-year limitations period.

The petitioner bears the burden of proving that the escape

clause applies. Perez-Rodriguez, 364 Or at 499. If a peti-

tioner is indigent and wants to be represented by a court-

appointed lawyer, the petitioner must file a pro se petition

and an affidavit stating that they are unable to pay for a

lawyer. ORS 138.590. If the post-conviction court appoints

a lawyer for the petitioner, the lawyer may amend the peti-

tion. ORS 138.590(5). Thus, an indigent person who needs

the assistance of a lawyer to litigate their post-conviction

case must file a pro se petition and a statement of indigence

before they can secure that assistance.

The escape clause uses the word “could.” It applies

only if the ground for relief at issue “could not reasonably

have been raised” within the limitations period. Stated con-

versely, it does not apply if the ground for relief could rea-

sonably have been raised within that period. As this court

has observed, “could” “connotes capability, as opposed to

obligation.” Verduzco, 357 Or at 566 (so stating regarding

the escape clause in ORS 138.550(3) for successive petitions

(internal quotation marks omitted)). And, as this court has

held, when determining whether a ground for relief could

reasonably have been raised within the limitations period,

courts are to focus on the petitioner. Gutale, 364 Or at 519

(“[T]he inquiry * * * is whether a petitioner reasonably could

have raised a ground for relief before any litigation has

occurred. The focus of the reasonableness inquiry is there-

fore the petitioner, rather than an attorney representing the

petitioner.” (Emphasis in original.)). Thus, the legislature’s

use of the word “could” indicates that the escape clause

applies if the petitioner lacked the capability to reasonably

raise their ground for relief within the limitations period.

Cite as 371 Or 413 (2023) 425

The escape clause also uses the word “reasonably.”

As this court has explained regarding the escape clause

in ORS 138.550(3) for successive petitions, “the adverb

‘reasonably’ modifies the phrase, ‘could * * * have raised.’ ”

Verduzco, 357 Or at 566 (omission in original). As a result

of that adverb, the question “is not whether a petitioner con-

ceivably could have raised the grounds for relief,” but rather

“whether the petitioner reasonably could have raised those

grounds.” Id. That question “calls for a judgment about what

was ‘reasonable’ under the circumstances.” Id. Thus, the

word “reasonably” indicates that whether the escape clause

applies depends on the petitioner’s circumstances and what

was reasonable under those circumstances. In other words,

it depends on whether the petitioner “reasonably could have

been expected” to have raised the ground for relief at issue

within the limitations period. Eklof v. Steward, 360 Or 717,

733, 385 P3d 1074 (2016); see also North v. Cupp, 254 Or

451, 456, 461 P2d 271 (1969), cert den, 397 US 1054 (1970)

(holding that ORS 138.550(1) precludes a petitioner from

making a claim in a post-conviction case that the petitioner

did not make in the underlying criminal case, except in cer-

tain circumstances, including where the claim “could con-

ceivably have been made but could not reasonably have been

expected”).

In addition, the escape clause uses the word

“raised.” Thus, the clause’s applicability depends on a peti-

tioner’s capability to take a specific action: to raise a ground

for relief. The legislature’s use of the word “raised” suggests

that, when assessing whether the escape clause applies,

courts are to consider not only whether a petitioner was on

notice of a possible ground for relief but also whether the

petitioner was able to take the steps necessary to bring the

ground for relief before a court.

In summary, the text of the escape clause and our

cases construing that text indicate that, when determin-

ing whether the escape clause applies, a court must con-

sider a petitioner’s capabilities under the circumstances

that existed during the limitations period. They also indi-

cate that whether the escape clause applies does not depend

on whether it was conceivably possible for the petitioner to

426 Ingle v. Matteucci

raise the ground for relief during the limitations period, but,

rather, whether it was reasonably possible for the petitioner

to do so. And, they indicate that the focus of the inquiry

should be on whether it was reasonably possible for the peti-

tioner to take the steps necessary to bring the ground for

relief before a court. Together, those indications suggest

that whether the escape clause applies depends on whether

it would be reasonable to expect a petitioner to have raised

the ground for relief at issue given the circumstances that

existed during the limitations period; if it would be unrea-

sonable to expect the petitioner to have done so, then the

escape clause applies.

2. Case law

For additional guidance regarding when the escape

clause applies, we turn to several of our cases involving the

clause, including our first case construing the clause, Bartz

v. State of Oregon, 314 Or 353, 839 P2d 217 (1992), and our

most recent cases construing it, Gutale, and Perez-Rodriguez.

In Bartz, the petitioner filed an untimely post-

conviction petition asserting that his constitutional right to

counsel had been violated in the underlying criminal case

because his defense lawyer had failed to inform him of a

statutory defense. In his petition, Bartz asserted that the

escape clause applied because he had been unaware of the

statutory defense during the limitations period, which, at

the time, was 120 days. To determine whether his claim

of ineffective assistance of counsel “could not reasonably

have been raised” within the limitations period, this court

focused on whether the legal basis for the claim was “rea-

sonably available” to Bartz during that period. 314 Or at

359-60. It framed the issue as “whether the extant statutes

pertaining to a particular criminal offense constitute infor-

mation that is reasonably available to a defendant convicted

of that offense.” Id. at 359. It then explained:

“It is a basic assumption of the legal system that the ordi-

nary means by which the legislature publishes and makes

available its enactments are sufficient to inform persons of

statutes that are relevant to them. See Dungey v. Fairview

Farms, Inc., 205 Or 615, 621, 290 P2d 181 (1955) (every per-

son is presumed to know the law). Accordingly, we hold that

Cite as 371 Or 413 (2023) 427

the relevant statutes were reasonably available to Bartz

when his conviction became final. The failure of Bartz’s

counsel to advise him of all available statutory defenses

thus is not a ‘ground[ ] for relief * * * which could not rea-

sonably have been raised’ timely. * * * The exception to the

120-day limitation is not available to Bartz under the cir-

cumstances here.”

Bartz, 314 Or at 359-60 (brackets and first omission in

original; emphases added). Thus, the court concluded

that whether the escape clause applied to Bartz’s petition

depended on whether the information Bartz needed to raise

his ground for relief had been reasonably available to him

during the limitations period, and it further concluded

that, because the information that Bartz needed was a pub-

lished statute, it had been reasonably available to him and,

therefore, the escape clause did not apply under the circum-

stances. Id. Notably, Bartz did not assert that he could not

actually access the statute. He did not, for example, assert

that he was physically or mentally incapable of accessing

the statute. See Gutale, 364 Or at 528 n 4 (Balmer, J., dis-

senting) (distinguishing between a case where a petitioner

failed to access available laws and one where “the petitioner

was denied access to the laws, or where the state’s actions

were responsible for the petitioner’s ignorance”); see also

Canales-Robles v. Laney, 314 Or App 413, 419-20, 498 P3d

343 (2021) (concluding that, if true, the petitioner’s allega-

tion that the state prevented him from bringing a claim by

depriving him of access to all legal materials was sufficient

to establish that the escape clause applied).

In Gutale, this court provided additional guidance

regarding the scope of the escape clause. In his underlying

criminal case, Gutale pleaded guilty to one charge, a Class A

misdemeanor, and the other charges were dismissed. At his

sentencing hearing, Gutale told the trial court that he was

pleading guilty because he wanted to travel and to obtain

United States citizenship. Neither Gutale’s defense lawyer

nor the trial court said anything that would have indicated

to Gutale that his plea could result in immigration conse-

quences. More than two years after his conviction became

final, immigration agents detained Gutale. Thereafter,

Gutale filed a post-conviction petition. In it, he asserted

428 Ingle v. Matteucci

that the escape clause applied because he had been unaware

of the possibility that his plea could result in immigration

consequences until he was detained. On the state’s motion,

the trial court dismissed the petition. The Court of Appeals

affirmed, relying on its decision in Benitez-Chacon v. State

of Oregon, 178 Or App 352, 37 P3d 1035 (2001). Gutale v.

State of Oregon, 285 Or App 39, 44, 395 P3d 942 (2017).

That court explained that in Benitez-Chacon it had relied on

Bartz to hold that “a petitioner is presumed to know immi-

gration laws and, consequently, a petitioner’s subjective lack

of awareness of the legal consequences of a plea will not

delay the time in which a petition must be filed under ORS

138.510(3).” Id. at 41.

On review, this court reversed, holding that Bartz

was not controlling:

“[N]otwithstanding the citation to Dungey, this court’s

analysis in Bartz did not turn on a presumption that peo-

ple know the law. Instead of presuming that the petitioner

knew the law, the court in Bartz concluded that the legal

basis for the petitioner’s claim was reasonably available to

the petitioner. The court reached that conclusion because,

if the petitioner had looked, the law could have been found

in publicly available sources. * * * [T]he court held that,

because ‘it is a basic assumption of the legal system that

the ordinary means by which the legislature publishes and

makes available its enactments are sufficient to inform

persons of statutes that are relevant to them,’ the statutes

pertaining to the petitioner’s crime of conviction ‘were rea-

sonably available to [the petitioner] when his conviction

became final.’ * * * Thus, consistent with our other deci-

sions interpreting the escape clause, the court’s analysis in

Bartz turned on whether the legal basis for the petitioner’s

claim was reasonably available to him. And the court con-

cluded that it was.”

Gutale, 364 Or at 510 (quoting Bartz, 314 Or at 359-60

(emphasis and brackets in Gutale)). This court went on to

hold that whether the basis for a ground for relief is rea-

sonably available to a petitioner depends on the petitioner’s

circumstances. Id. at 511-13. Those circumstances include

whether the petitioner would have been on notice of the need

to investigate the existence of the ground for relief. Id. at

510-11 (“Being reasonably available means more than just

Cite as 371 Or 413 (2023) 429

that a petitioner could have found the law if he or she had

looked. Instead, a ground for relief is reasonably available

only if there was a reason for the petitioner to look for it.”).

The court then considered the particular circumstances that

Gutale had alleged in his petition, including that he had

told the trial court that he planned to travel and become a

United States citizen and that neither his defense lawyer nor

the trial court told him that his plea could result in immi-

gration consequences. Id. at 513. The court concluded that

those allegations, if true, were sufficient to establish that

the escape clause applied and, therefore, the post-conviction

court had erred in dismissing the petition. Id. at 520.

The court reached the opposite conclusion in Perez-

Rodriguez, which it issued the same day as Gutale. Like

Gutale, Perez-Rodriguez filed an untimely post-conviction

petition asserting both that his defense lawyer had failed

to inform him of the immigration consequences of his plea

and that the escape clause applied because he had been

unaware of the possibility that his plea could result in immi-

gration consequences until after the limitations period had

run. But, unlike Gutale, Perez-Rodriguez was “on notice of

potential immigration consequences.” Perez-Rodriguez, 364

Or at 497. Although he had not been told that there would be

immigration consequences, he was told that there might be.

Therefore, the court concluded, “it was incumbent on him to

determine what those immigration consequences might be

and whether his trial counsel had failed to accurately com-

municate those consequences to him.” Id. Consequently, the

court rejected Perez-Rodriguez’s argument that the escape

clause applied because he had been unaware of the immi-

gration consequences of his plea until the limitations period

had run. Id.

In addition to that argument, Perez-Rodriguez

argued that the escape clause applied because he had a men-

tal illness and intellectual disability that prevented him

from knowing that he had a ground for relief within the lim-

itations period. That argument gave rise to two questions:

“(1) whether a petitioner’s mental illness and intellec-

tual disability may ever justify applying the escape clause

and (2) if so, whether the particular mental illness and

430 Ingle v. Matteucci

intellectual disability that petitioner alleges are sufficient

allegations to establish, for assessing the state’s motion to

dismiss, that petitioner could not reasonably have brought

his claim during the limitations period.”

Id. at 498. The court determined that it did not need to

resolve the first question, explaining that, “even if a petitioner’s

mental illness and intellectual disability could justify apply-

ing the escape clause, petitioner’s specific allegations here

would not justify applying the escape clause in this case.” Id.

at 499 (emphasis in original). The court further explained

that the petitioner’s allegations failed to establish “that he

did not have the capacity to file his petition” within the lim-

itations period. Id. at 500. It noted that petitioner had not

alleged, “for example, that his mental illness led to any—let

alone, prolonged—periods of psychosis during the limita-

tions period.” Id. “Instead,” the court pointed out that

“the pleadings and record show that petitioner has had

three psychotic breaks in his life: two before his conviction

and one after the limitations period expired. Simply having

schizoaffective disorder is, by itself, insufficient. See United

States v. Sosa, 364 F3d 507, 513 (4th Cir 2004) (holding

that schizoaffective disorder does not constitute ‘profound

mental incapacity’ needed to satisfy one element of equi-

table tolling for federal habeas claim); Grant v. McDonnell

Douglas Corp., 163 F3d 1136, 1138 (9th Cir 1998) (hold-

ing that equitable tolling based on mental condition may

be appropriate ‘only in exceptional circumstances, such as

institutionalization or adjudged mental incompetence’).”

Perez-Rodriguez, 364 Or at 500 (emphasis added). Therefore,

the court affirmed the trial court’s dismissal of the petition.

Id.

In sum, this court has addressed the scope of the

escape clause in ORS 138.510(3) in several cases. Those cases

establish that the fact that a petitioner was unaware of the

basis for a ground for relief during the limitations period

is insufficient, in and of itself, to trigger the escape clause.

Bartz, 314 Or at 359-60. They also establish that whether

the clause applies does not depend solely on whether the law

or facts on which a ground for relief depends existed during

the limitations period; it also depends on whether the peti-

tioner had a reason to investigate the ground for relief.

Cite as 371 Or 413 (2023) 431

Gutale, 364 Or at 512. Whether a petitioner had such a rea-

son depends on the petitioner’s particular circumstances,

which can include what the petitioner was told. Id. at 513;

Perez-Rodriguez, 364 Or at 497. Overall, this court’s cases

construing the escape clause in ORS 138.510(3) are con-

sistent with what the text of the clause indicates: that the

escape clause applies when, given the circumstances that

existed during the limitations period, it would be unreason-

able to expect the petitioner to have filed a timely petition

raising the ground for relief at issue.

3. Context

The general context of the statute of limitations

supports that view. As both parties acknowledge, “Oregon

has always had a statute suspending the running of the

statutes of limitation for persons under certain disabilities,

including insanity.” DeLay v. Marathon LeTourneau Sales

& Serv. Co., 291 Or 310, 313, 630 P2d 836 (1981). Oregon’s

original statute providing for tolling stated:

“If [a] person entitled to bring an action mentioned in

this title * * * be, at the time the cause of action accrued,

***

“* * * * *

“Insane; * * *

“* * * * *

“The time of such disability shall not be a part of the

time limited for the commencement of the action[.]”

General Laws of Oregon, Civ Code, ch I, title II, § 17, p 108

(Deady & Lane 1843-1872). With slight modification, that

provision was later included in the Oregon Revised Statutes.

ORS 12.160 (1955). And, at the time that the legislature

enacted the statute of limitations for post-conviction claims,

Oregon law continued to provide for tolling of statutes of

limitations based on insanity:

“If, at the time the cause of action accrues, any person

entitled to bring an action mentioned in [other parts of

ORS chapter 12] is:

“* * * * *

432 Ingle v. Matteucci

“Insane; * * *

“* * * * *

“The time of such disability shall not be a part of the

time limited for the commencement of the action[.]”

ORS 12.160 (1987). Oregon’s long history of tolling statutes

of limitations due to a party’s insanity provides context for

what the legislature would have understood to be “extraor-

dinary circumstances” for the purpose of the escape clause.4

4. Legislative history

For final guidance regarding the applicability of

the escape clause, we turn to its legislative history. The

Oregon legislature enacted the Post-Conviction Hearing Act

(PCHA) in 1959. Or Laws 1959, ch 636. The PCHA did not

include a statute of limitations. To the contrary, it provided

that “[a] petition * * * may be filed without limit in time.”

4

To be sure, the statute of limitations for post-conviction petitions does not

contain a tolling provision; instead, it has an escape clause. Our point is simply

that, when the legislature created the escape clause for “extraordinary circum-

stances,” insanity had long been treated as an extraordinary circumstance that

could be the basis for allowing claims that would otherwise be time-barred to

proceed.

The state points out that the tolling provision for insanity is limited by a

statute of ultimate repose, but that the escape clause in ORS 138.510(3) is not.

That is true, but it is consistent with how the legislature has treated untimely

post-conviction claims; there is no statute of ultimate repose for such claims.

The state also points out that, in the statute of limitations context, there is a

difference between “accrual” and “tolling.” It asserts that

“[a]ccrual is when a statute of limitations begins to run and is governed by a

‘discovery rule’ that operates independently of a claimant’s mental condition.

Tolling, by contrast, pauses a limitations clock from running on an accrued

claim, and a claimant’s mental condition has long been a basis for tolling the

time limit on an accrued claim, not an impediment to accrual itself.”

(Emphasis in original.) The state then argues that the escape clause in ORS

138.510(3) is only an “accrual rule.”

The state’s effort to compare the statute of limitations for post-conviction peti-

tions to other statutes of limitations is understandable, but the statute of lim-

itations for post-conviction petitions is unique. It does not work the same way as

other statutes of limitations, because its limitations period starts to run from a

specific date—when a conviction becomes final—and that date is independent of

when a claim “accrues” in the sense that a plaintiff knows or has reason to know

of a claim. That is, the post-conviction statute does not have an ordinary discovery

accrual rule; instead, it has the escape clause, which is broad enough to cover both

circumstances where a petitioner did not know or have reason to know of their

ground for relief and circumstances where a petitioner was incapable of taking the

steps necessary to raise their ground for relief within the limitations period.

Cite as 371 Or 413 (2023) 433

Id. at § 17; ORS 138.510(2) (1959). But the PCHA included

a limit on successive petitions. Section 15(3) of the PCHA

stated:

“All grounds for relief claimed by petitioner in a petition

pursuant to [the PCHA] must be asserted in his original

or amended petition, 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.”

Or Laws 1959, ch 636, § 15(3). Thus, the PCHA included

a section that required a petitioner to raise all their

grounds for relief in their initial post-conviction case, but

that requirement had an exception for grounds for relief

that “could not reasonably have been raised in the origi-

nal or amended petition.” That section was codified as ORS

138.550(3), which has remained substantively unchanged

since its enactment. ORS 138.550(3) “codifies claim preclu-

sion principles.” Gutale, 364 Or at 518.

“It addresses the question of whether a petitioner who

already has litigated a petition for post-conviction relief

may return to court and litigate a second time, and it pro-

vides that a petitioner may not do so where counsel reason-

ably could have raised the grounds at issue in that prior

litigation.”

Id.

In 1989, 30 years after the enactment of the PCHA,

the legislature established a statute of limitations for post-

conviction petitions. Or Laws 1989, ch 1053, § 18. During

the 1989 legislative session, the legislature considered sev-

eral post-conviction bills, two of which ultimately included

statutes of limitations: House Bill (HB) 2796 (1989) and

Senate Bill (SB) 284 (1989). As explained below, HB 2796

did not become law, but its statute of limitations was added

to SB 284, which did.

Representative Ray Baum introduced HB 2796,

proposing a 120-day limitations period for filing post-

conviction petitions. Tape Recording, House Floor, HB 2796,

Apr 27, 1989, Tape 17, Side 1. The limitations period was

intended to further the legislature’s goal of reducing the

434 Ingle v. Matteucci

costs of the state’s indigent defense programs. Id. (state-

ment by Representative Baum). Representative Baum, a

lawyer who had represented petitioners in post-conviction

cases, explained that the purpose of the limitations period

was to reduce the number of frivolous post-conviction peti-

tions. He stated, “[L]et me just tell you, the reason I did this

bill was, having been court appointed on close to 100 cases,

finding only five percent or less to be meritorious, I found

that as time goes on, you sit there and think about things

you’re going to appeal on and most of those things are friv-

olous.” Tape Recording, House Committee on Judiciary,

Subcommittee on Crime and Corrections, HB 2796, Mar 9,

1989, Tape 45, Side A. Similarly, a representative of the

Oregon Department of Justice, Brenda Peterson, described

petitions filed ten years after a conviction became final as

“[s]omething to do, stir up a little trouble.” Id. In keeping

with those statements, a Staff Measure Summary informed

legislators that, “if a person has a genuine basis for appeal,

the person will seek post-conviction relief soon after convic-

tion” and that “[t]he proposed time limitation may result in

less frivolous suits being filed.” Exhibit C, House Committee

on Judiciary, Subcommittee on Crime and Corrections, HB

2796, Mar 9, 1989.

As originally introduced, the limitations period in

HB 2796 did not have an escape clause. But, after the State

Court Administrator pointed out that ORS 138.550(3), which

limits successive petitions, has an escape clause, the sub-

committee amended HB 2796 to include an escape clause.

Exhibit G, House Committee on Judiciary, Subcommittee on

Crime and Corrections, HB 2796, Mar 9, 1989 (testimony

of State Court Administrator R. William Linden, Jr.); Tape

Recording, House Committee on Judiciary, Subcommittee

on Crime and Corrections, HB 2796, Apr 4, 1989, Tape 60,

Side B (amending bill). To do so, the subcommittee imported

the wording of the escape clause in ORS 138.550(3) for suc-

cessive petitions. Consequently, HB 2796’s escape clause pro-

vided, in part, that a petition for post-conviction relief must

be filed within 120 days of the date the conviction becomes

final, “unless the court on hearing a subsequent petition

finds grounds for relief asserted which could not reason-

ably have been raised in the original or amended petition.”

Cite as 371 Or 413 (2023) 435

Exhibit Y, House Committee on Judiciary, Subcommittee on

Crime and Corrections, HB 2796, Apr 4, 1989 (text of the

amendment).

Representative Kevin Mannix described the escape

clause as “an escape valve for extraordinary circum-

stances.” Tape Recording, House Committee on Judiciary,

Subcommittee on Crime and Corrections, HB 2796, Apr 4,

1989, Tape 60, Side B. Similarly, a Staff Measure Summary

informed legislators that the escape clause is “a ‘safety valve’

for those who had valid reasons for not raising grounds for

relief within the time limit.” Exhibit CC, House Committee

on Judiciary, HB 2796, Apr 18, 1989. The House passed the

bill to the Senate, but the bill did not become law.

During the same session, the Senate considered

SB 284, which concerned indigent defense expenses. As

originally introduced, SB 284 did not include a limitations

period for post-conviction cases. Exhibit, Senate Committee

on Judiciary, SB 284, Apr 12, 1989 (hand engrossed amend-

ments); Tape Recording, Senate Committee on Judiciary, SB

284, Apr 12, 1989, Tape 111, Side A. However, once the Senate

passed the bill to the House, the House amended the bill to

add the 120-day limitations period and the escape clause from

HB 2796. Tape Recording, House Committee on Judiciary,

Subcommittee on Civil and Judicial Administration, SB

284, June 12, 1989, Tape 123, Side A (amending bill). A

representative of the Oregon Criminal Defense Lawyers

Association, Ross Shepard, testified in support of the addi-

tion of the escape clause, noting that it would “allow filings

outside of the 120 days if extraordinary circumstances could

be shown.” Tape Recording, House Committee on Judiciary,

Subcommittee on Civil and Judicial Administration, SB

284, June 12, 1989, Tape 122, Side A. Shepard described

those circumstances as circumstances where “there was no

reasonable way that a person could have brought up those

grounds for relief within the [limitations] period.” Tape

Recording, House Committee on Judiciary, Subcommittee

on Civil and Judicial Administration, SB 284, June 12,

1989, Tape 123, Side A. As examples, Shepard mentioned

circumstances where evidence is discovered or the law

changes after the limitations period. Tape Recording, House

436 Ingle v. Matteucci

Committee on Judiciary, Subcommittee on Civil and Judicial

Administration, SB 284, June 12, 1989, Tape 122, Side A

(describing a hypothetical situation involving late discovery

of evidence of collusion between a prosecutor and a defense

lawyer); Tape Recording, House Committee on Judiciary,

Subcommittee on Civil and Judicial Administration, SB

284, June 12, 1989, Tape 123, Side A (referring to a situ-

ation where the statute that a defendant was convicted of

violating is later declared unconstitutional).

To recap, the original PCHA, which was enacted in

1959, did not include a statute of limitations. The legislature

did not create one until 30 years later, in 1989. The 1989

statute of limitations included a 120-day limitations period

and an escape clause. The ideas underlying the statute were

that persons with “genuine” claims seek post-conviction

relief “soon after conviction” and that petitions filed long

after a conviction are more likely to be “frivolous.” Exhibit C,

House Committee on Judiciary, Subcommittee on Crime

and Corrections, HB 2796, Mar 9, 1989 (staff measure

summary). Notably, the legislature did not bar all claims

filed after the limitations period; it included an escape

clause, which it intended to apply in “extraordinary circum-

stances,” which include circumstances where “there was no

reasonable way” that a person could have raised the ground

for relief within the limitation period. Tape Recording,

House Committee on Judiciary, Subcommittee on Civil and

Judicial Administration, SB 284, June 12, 1989, Tape 123,

Side A (statement by Ross Shepard).

As mentioned, when creating the statute of lim-

itations’ escape clause, the legislature imported wording

from ORS 138.550(3), which concerns successive petitions.

Because the imported wording concerns grounds for relief

raised in “a subsequent petition” that “could not reasonably

have been raised in the original or amended petition,” it was

unclear whether the statute of limitations’ escape clause

is available to all persons who file late petitions or only

those who previously filed timely petitions. ORS 138.510(3)

(emphases added). This court addressed that issue in Bartz.

As discussed above, Bartz filed an untimely peti-

tion for post-conviction relief on the ground that his defense

Cite as 371 Or 413 (2023) 437

lawyer had failed to advise him of a statutory defense, and

Bartz asserted that the escape clause applied because he had

been unaware of the defense within the limitations period.

This court ultimately rejected that argument, but before the

court could reach that argument, it had to resolve a prelim-

inary issue: whether the escape clause in ORS 138.510(3)

for untimely claims is available for petitioners like Bartz,

whose petition was untimely, but not successive.

To resolve that issue, the court first looked to the stat-

ute of limitations’ text. It concluded that the text “is ambigu-

ous” as to whether the statute’s escape clause “applies to all

late-filed petitions, or whether it is limited to late-filed peti-

tions filed by persons who filed an earlier, timely petition.”

Bartz, 314 Or at 357. The court then turned to the statute’s

legislative history. It determined that the history “is silent

on the present question.” Id. It pointed out that, although

the wording of the escape clause was “borrowed verbatim

from ORS 138.550(3),” which concerns successive petitions,

“[t]he legislative committees involved did not discuss the

appropriateness of that wording in [the statute of limita-

tions] context.” Id. at 358. Finally, the court considered the

purpose of the statute of limitations’ escape clause. Based

on statements about the escape clause in the legislative his-

tory, the court concluded that the escape clause’s purpose “is

to give persons extra time to file petitions for post-conviction

relief in extraordinary circumstances.” Id. The court then

reasoned that “[t]hat purpose applies equally to persons who

did and persons who did not file an earlier, timely petition.”

Id. Therefore, the court held that the escape clause “does not

require the filing of a timely ‘original or amended’ petition

as a prerequisite to the filing of an untimely petition.” Id.

The Bartz court’s resolution of that issue shows

that, although the wording of the escape clause for untimely

petitions was “borrowed verbatim” from the escape clause

for successive petitions, the legislature did not intend the

former to apply exactly the same way as the latter. It also

shows that the purpose of the escape clause can provide

guidance regarding the scope of the clause.

The year after Bartz, the legislature amended the

statute of limitations to increase the limitations period

438 Ingle v. Matteucci

from 120 days to two years. Or Laws 1993, ch 517, § 1. As

in 1989, the legislature was concerned about the costs of

post-conviction cases. Tape Recording, House Committee

on Judiciary, Subcommittee on Crime and Corrections,

HB 2352, Apr 7, 1993, Tape 70, Side A (statement by Ross

Shepard highlighting concerns about indigent defense

spending). It was also concerned about the amount of time

that could pass between when a criminal case was origi-

nally litigated and when it was relitigated, if post-conviction

relief was granted. Id. (statement by Representative Mannix

reiterating his concerns about litigating 10-year-old cases).

But the legislature had come to the conclusion that the 120-

day limitations period was too short; it barred too many

post-conviction petitions. Tape Recording, House Floor, HB

2352, May 4, 1993, Tape 78, Side B (Representative Peter

Courtney’s third reading of the bill).

Legislators’ comments about the limitations period

show that they wanted to allow persons a reasonable amount

of time to identify and raise their post-conviction claims and

that they believed two years would be enough time for most

petitioners, including those with lower education levels. Tape

Recording, House Committee on Judiciary, Subcommittee

on Crime and Corrections, HB 2352, Apr 7, 1993, Tape

70, Side A (Representative Kate Brown commenting, “My

concern is the level of folks we’re working with here, that

sixty-seven percent of them don’t have a high school edu-

cation and a lot of them aren’t even able to read, and I just

think two years is a reasonable statute of limitations under

the folks we’re working with.”); see also id. (Representative

Mannix stating that “it doesn’t take you very long to reflect

on your conviction and the trial and the appeals process and

decide whether or not you think you were railroaded.”).

Although the legislature did not change the text

of the escape clause, commenters shared their thoughts on

its scope. Brenda Peterson stated that the “savings clause”

would “take care of the hard cases” and would apply when

petitioners “present reasons to the court” regarding “why

they * * * didn’t file their petition” within the limitations

period. Id. Representative Mannix described the escape

Cite as 371 Or 413 (2023) 439

clause as “a savings clause for unconscionable situations

where the system didn’t work.” Id.

Thus, the 1993 legislature amended the statute of

limitations to increase the length of the limitations period.

Its goal was to afford people a reasonable opportunity to

determine whether they had a post-conviction claim and, if

they did, to file a petition. They believed a two-year lim-

itation period was sufficient for most petitions, but they

retained the escape clause for petitions that assert grounds

for relief that could not reasonably have been raised within

that period. They assumed that most petitioners, even those

with lower education levels, would be able to reflect on their

convictions and decide whether to challenge them within

the limitations period.

This court has reviewed the legislative history of

the statute of limitations and its escape clause. Of particular

relevance here, given the state’s argument that the escape

clause in ORS 138.510(3) for untimely petitions should be

construed the same as the escape clause in ORS 138.550(3)

for successive petitions, this court has continued to hold, as

it did in Bartz, that, although the wording of ORS 138.510(3)

was imported from ORS 138.550(3), the two clauses must

be interpreted separately. In Verduzco, the petitioner filed

a petition that was both untimely and successive, and this

court held that whether the escape clause in ORS 138.510(3)

for untimely petitions applied was a separate question from

whether the escape clause in ORS 138.550(3) for succes-

sive petitions applied because, “[a]lthough both clauses are

worded identically, one was enacted in 1959 while the other

was enacted in 1989 and modified in 1993. The contexts

that preceded the two clauses differ, as do their legislative

histories.” 357 Or at 564; see also Gutale, 364 Or at 518-19

(explaining that, given the different purposes of the escape

clauses, the focus of the inquiry into whether a ground for

relief could not reasonably have been raised differs).

In summary, the statute of limitations for post-

conviction petitions was initially enacted in 1989, and it was

amended in 1993. It was intended to help reduce the costs of

the state’s indigent defense programs by reducing the num-

ber of frivolous petitions. The wording of the statute’s escape

440 Ingle v. Matteucci

clause was taken from the escape clause in ORS 138.550(3)

for successive petitions. But, despite their identical wording,

this court has held that, given their different contexts and

legislative histories, the escape clauses must be interpreted

separately. And, since Bartz (this court’s first case constru-

ing the escape clause in ORS 138.510(3) for untimely peti-

tions) and through Gutale and Perez-Rodriguez (this court’s

most recent cases construing that clause), this court has

construed the two clauses differently. When construing the

escape clause in ORS 138.510(3), this court has looked to its

legislative history and purpose. The legislative history shows

that, both in 1989 and 1993, the legislature believed that,

in most cases, persons would have reason to, and be able to,

raise their grounds for relief within the limitations period.

Exhibit C, House Committee on Judiciary, Subcommittee on

Crime and Corrections, HB 2796, Mar 9, 1989 (staff measure

summary stating that most people with a “genuine” ground

for relief will file soon after conviction); Tape Recording,

House Committee on Judiciary, Subcommittee on Crime

and Corrections, HB 2352, Apr 7, 1993, Tape 70, Side A

(Representative Mannix explaining that, in general, people

can readily reflect on their trials and convictions and decide

whether they think they were “railroaded”). But the legisla-

ture recognized that that would not always be the case, so

it created the escape clause. It intended the escape clause to

apply in “extraordinary circumstances,” including circum-

stances where there was no “reasonable way” that a peti-

tioner could have raised a ground for relief. Tape Recording,

House Committee on Judiciary, Subcommittee on Civil and

Judicial Administration, SB 284, June 12, 1989, Tape 123,

Side A. In keeping with that legislative history, this court

has held that the escape clause must be construed “nar-

rowly.” Bartz, 314 Or at 359.

B. Whether a Post-Conviction Court May Consider a

Petitioner’s Mental Impairments when Determining

Whether the Escape Clause Applies

Having reviewed the text, context, and legislative

history of the statute of limitations, as well as our cases con-

struing the statute, we now apply the points we have drawn

from that review to the general legal question presented by

Cite as 371 Or 413 (2023) 441

this case: whether a post-conviction court may consider a

petitioner’s mental impairments when determining whether

the statute of limitations’ escape clause applies. The text

indicates that a court may do so. The escape clause applies

when a ground for relief “could not reasonably have been

raised” and “could” connotes “capability.” Verduzco, 357 Or

at 566. And, when determining whether the escape clause

applies, the proper focus is on the petitioner. Gutale, 364 Or

at 519. Thus, the petitioner’s capabilities matter. That under-

standing is in keeping with Bartz, in which this court held

that whether the escape clause applies depends on whether a

ground for relief was “reasonably available” to the petitioner

during the limitations period; if a petitioner is incapable of

taking the steps necessary to investigate whether a ground

for relief exists, the ground is not reasonably available to

the petitioner. That understanding is also in keeping with

Gutale, where this court held that the escape clause applied

because the petitioner did not have reason to investigate the

ground for relief at issue during the limitations period; if

the clause applies when a petitioner did not have a reason

to investigate a ground for relief, it should apply when the

petitioner did not have the capability to investigate a ground

for relief.

Consider, for example, a situation where a person

is in a comatose state throughout the limitations period.

Such a person could not reasonably raise a ground for relief

within the limitations period. We believe the same would

be true for a person suffering from mental impairments

during the limitations period if the mental impairments

are so severe—both in terms of degree and duration—that

it would be unreasonable to expect the person to take the

steps necessary to bring the ground for relief before a court

during the limitations period. Those steps may be minimal,

and it may be reasonable to expect the person to seek out

help in taking them. But, if the person cannot reasonably

take those necessary steps, even with available assistance,

then the escape clause applies.

That conclusion is consistent with the general con-

text of the escape clause, specifically, Oregon’s long history

442 Ingle v. Matteucci

of recognizing insanity as a reason for allowing untimely

claims.

Finally, that conclusion is consistent with the legis-

lative history and purpose of the escape clause. As discussed,

the legislature created a statute of limitations that contains

both a limitations period and an escape clause. It based the

limitations period on an assumption that persons would be

able to reflect on their convictions and take the necessary

steps to challenge them within the limitations period, and

it created the escape clause to cover extraordinary circum-

stances. Given the assumption underlying the limitations

period, we conclude that the extraordinary circumstances

include circumstances where a person, for reasons beyond

their control, lacks the capability to take the minimal steps

that the legislature believed that a person would be able to

take during the limitations period.5

In arguing against that conclusion, the state asserts

that, because wording of the escape clause in ORS 138.510

for untimely petitions was imported from the escape clause

in ORS 138.550 for successive petitions, (1) the former should

be construed the same as the latter and (2) the latter does

not allow for consideration of a petitioner’s mental condition.

Specifically, the state argues:

“The 1989 legislature borrowed the escape clause from

existing law intended to codify the doctrine of claim preclu-

sion and inserted it into ORS 138.510(3) without modifica-

tion. The scope of claim preclusion is governed by the same

‘discovery’ accrual rule that also ordinarily sets statutes

of limitations in motion, and the law has long held that

5

As an example, consider the following hypothetical: A court enters judg-

ment against two defendants on the same day. Neither appeals. Both defendants

had solid alibi defenses against the crime of conviction, but their lawyers failed to

investigate or raise the defenses. Defendant One files a petition for post-conviction

relief within the limitations period and prevails. See Lichau v. Baldwin, 333 Or

350, 39 P3d 851 (2002) (granting post-conviction relief for inadequate assistance

of counsel based on the failure to investigate an alibi defense and its prejudicial

effect). Defendant Two falls into a coma on the day that the court entered the

judgment and remains that way for two years. Defendant Two has a valid claim

that was immediately available and did not depend on newly discovered informa-

tion. We do not believe that the legislature intended Defendant Two’s claim to be

time-barred. The legislature was concerned with reducing frivolous claims and

reducing costs, but it also included the escape clause as an exception for extraor-

dinary situations. Application of the escape clause to Defendant Two’s claim is

consistent with the legislative discussions.

Cite as 371 Or 413 (2023) 443

that discovery rule operates independently of the particu-

lar claimant’s mental condition.”

According to the state, “[i]t follows that,” when the

1989 legislature enacted the statute of limitations for post-

conviction claims, it intended the statute’s escape clause “to

operate as an accrual rule,” more specifically, a “discovery

accrual rule” under which a claim accrues “either when

the plaintiff actually discovers their legal injury or when

they reasonably should have discovered it, whichever occurs

first.” (Emphasis in original.) The state further argues that

the discovery accrual rule “focuses on an abstraction—the

‘objectively reasonable person’—rather than on the specific

claimant at issue,” and, therefore, does not allow for consid-

eration of “the characteristics of the particular claimant,”

including “mental illness.”

The state’s argument, which the dissent echoes, is

unavailing. First, and most importantly, the state’s primary

premise—that because the escape clause in ORS 138.510 for

untimely petitions was imported from the escape clause in

ORS 138.550 for successive petitions, the two clauses should

be construed the same—is inconsistent with our case law.

As explained above, this court has expressly, repeatedly,

and consistently held that the two clauses must be con-

strued separately given their different contexts, histories,

and purposes. And, as Gutale and Perez-Rodriguez illus-

trate, whether the escape clause applies can depend on a

petitioner’s particular situation, including whether, based

on the particular information the petitioner received, the

petitioner would have had a reason to investigate a ground

for relief. Compare Gutale, 364 Or at 512-13, with Perez-

Rodriguez, 364 Or at 497.

Given that the primary premise of the state’s argu-

ment is inconsistent with our case law, we need not deter-

mine whether its other premises—that the escape clause

in ORS 138.550 is a discovery accrual rule and that, as a

result, a plaintiff’s personal characteristics are irrelevant to

whether it applies—are correct. But we pause to note that,

even assuming that the escape clause in ORS 138.550 is a

discovery accrual rule, the state’s assertion that a plain-

tiff’s personal characteristics are irrelevant is too sweeping.

444 Ingle v. Matteucci

We have considered personal characteristics—specifically,

age—when applying discovery accrual rules. Doe v. Lake

Oswego Sch. Dist., 353 Or 321, 333, 297 P3d 1287 (2013)

(“[A] court must consider the facts from the perspective of

a reasonable person in the circumstances of the plaintiff.

Those circumstances include, but are not limited to, plain-

tiff’s status as a minor, the relationship between the parties,

and the nature of the harm suffered.” (Citations omitted.));

T.R. v. Boy Scouts of America, 344 Or 282, 297, 181 P3d 758

(2008) (considering the plaintiff’s age when applying a dis-

covery accrual rule). And, in other contexts when applying a

“reasonable person” or “reasonable care” test, we have stated

that age and disability are relevant. See Thomas v. Inman,

282 Or 279, 285-86, 578 P2d 399 (1978) (concluding that a

minor’s age and intelligence are relevant to the “reasonable

person” standard for negligence); Biddle v. Mazzocco, 204 Or

547, 556, 284 P2d 364 (1955) (stating that “[w]hether a child

playing in the street, for example, is guilty of contributory

negligence is determined from the standpoint of a child of

like age and experience; and the conduct of a blind person

on the street is tested by that of a reasonably prudent blind

person in like or similar circumstances”).

The state also argues that allowing post-conviction

courts to consider a petitioner’s mental impairments is

inconsistent with the legislature’s intent in enacting the

statute of limitations, because the legislature intended to

reduce the number of post-conviction cases. We agree with

the state that the legislature intended to reduce the number

of post-conviction cases, but for the reasons explained above,

we believe that the existence of severe mental impairments

constitutes the type of extraordinary circumstance that the

legislature intended the escape clause to cover and, there-

fore, litigation regarding the existence of such impairments

is consistent with the legislature’s intent.

Moreover, the amount of litigation will be limited

by the fact that the bar for establishing that the escape

clause applies is high. The escape clause is narrow, and the

petitioner bears the burden of alleging facts sufficient to

establish that it applies. In other contexts, courts already

consider mental impairments when determining whether

Cite as 371 Or 413 (2023) 445

an untimely case can proceed, and the approaches used in

those cases can guide litigants and courts as they determine

whether the escape clause applies. For example, federal

courts have held that a person’s mental impairments can

justify equitable tolling of the limitations period for habeas

corpus claims and have set out requirements for such toll-

ing. See, e.g., Bills v. Clark, 628 F3d 1092, 1097 (9th Cir

2010) (holding that the threshold for triggering equitable

tolling is “very high” and setting out requirements); see also

Milam v. Harrington, 953 F3d 1128, 1130-33 (9th Cir 2020)

(holding that the district court erred in refusing to consider

whether a federal habeas petitioner’s mental impairment

caused the untimely filing of his petition). In Bills, the Ninth

Circuit held that, to trigger equitable tolling, a petitioner

must prove that “his mental impairment was an ‘extraor-

dinary circumstance’ beyond his control.” 628 F3d at 1099.

To do so, the petitioner must prove that his “impairment

was so severe” that it rendered him “unable rationally or

factually to personally understand the need to timely file” or

“unable personally to prepare a habeas petition and effectu-

ate its filing.” Id. at 1100. In addition, the petitioner “must

show diligence in pursuing the claims to the extent he could

understand them, but that the mental impairment made it

impossible to meet the filing deadline under the totality of

the circumstances, including reasonably available access to

assistance.” Id.

C. Whether Petitioner’s Allegations Are Sufficient to Support

Application of the Escape Clause

Having concluded that a post-conviction court can

consider a petitioner’s mental impairments when determin-

ing whether the escape clause in ORS 138.510(3) applies

to an untimely petition, we now turn to the question of

whether petitioner’s allegations in this case are sufficient to

support application of the clause. Because the state moved

to dismiss petitioner’s case on the pleadings, we assume the

truth of petitioner’s allegations. As described above, peti-

tioner alleged that, during the limitations period, he was

“intellectually disabled as a result of his diagnosed schizo-

phrenia and his forced consumption of extremely power-

ful psychotropic medications.” He further alleged that his

446 Ingle v. Matteucci

disability prevented him from understanding both what

had happened in his underlying criminal case and what he

could do to challenge his convictions. And he alleged that

his mental impairments “deprived him of the ability to

appreciate, identify, allege, and support with the requisite

evidence, the relevant claims for relief.” Those allegations,

if true, are sufficient to establish that, as a result of mental

impairments that existed throughout the limitations period

and were beyond his control, petitioner lacked the ability to

take the necessary steps to initiate a post-conviction case.

As such, they are sufficient to trigger the escape clause.

Therefore, the post-conviction court erred in granting the

state’s motion to dismiss on the pleadings.6

III. CONCLUSION

To recap, when the legislature created the statute

of limitations for post-conviction petitions, ORS 138.510(3),

it included both a limitations period and an escape clause.

The legislature believed that, in most circumstances, peti-

tioners would be able to take the steps necessary to raise

their grounds for relief within the limitations period, but

it created the escape clause to cover extraordinary circum-

stances. The escape clause applies when a ground for relief

“could not reasonably have been raised” within the limita-

tions period. The words used in the clause and our cases

construing them indicate that whether the clause applies

depends on the petitioner’s capabilities under the circum-

stances that existed during the limitations period. When

assessing those capabilities, the question is not whether the

petitioner conceivably could have raised the ground for relief,

but whether the petitioner reasonably could have done so.

Stated differently, the question is whether it would be rea-

sonable to expect the petitioner to have raised the ground

for relief. A petitioner’s mental impairments are relevant to

that question. If a petitioner’s mental impairments are so

severe—both in terms of degree and duration—that it would

be unreasonable to expect the petitioner to have taken the

steps necessary to raise a ground for relief, even with avail-

able assistance, then the escape clause applies. But, because

6

Whether petitioner will be able to present sufficient evidence to support

those allegations at later stages of the case is a separate matter.

Cite as 371 Or 413 (2023) 447

the escape clause is narrow, the bar for establishing that

level of impairment is high. Here, petitioner’s allegations,

if true, are sufficient to support application of the escape

clause. Therefore, the post-conviction court erred in grant-

ing the state’s motion to dismiss on the pleadings.

The decision of the Court of Appeals is reversed.

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

is remanded to that court for further proceedings.

GARRETT, J., dissenting.

I would affirm the judgment below. As this court

has long described it, the “escape clause” in ORS 138.510(3)

reflects the legislature’s intent that, in “extraordinary cir-

cumstances,” post-conviction petitioners should be able

to bring claims after the expiration of the statute of lim-

itations. Bartz v. State of Oregon, 314 Or 353, 358-59, 839

P2d 217 (1992) (the provision is “meant to be construed

narrowly”). Adhering carefully to this court’s case law, the

Court of Appeals held that the escape-clause analysis uses a

“reasonable person” test that does not turn on a petitioner’s

personal characteristics. Ingle v. Matteucci, 315 Or App 416,

501 P3d 23 (2021). The majority today rejects that view,

holding that petitioner may invoke the escape clause based

on a showing that, because of his serious mental illness, he

could not reasonably have raised his post-conviction claim

earlier than he did.

The majority’s holding has significant implications

for the frequency with which petitioners will be able to raise

late claims. The question before us is how the legislature,

which added the escape clause in 1989 and addressed it

again in 1993, intended for the statute to work. Based on

the statutory text in context, as previously construed by this

court, along with the legislative history, I am not persuaded

that the legislature intended the escape clause to be as

expansive as the majority’s reasoning would have it. Rather,

the legislature intended for a post-conviction court to ask

whether the information necessary to assert a claim was

available within the statute of limitations—viewed from the

perspective of a reasonable person. Personal characteristics

such as mental illness are not the sort of “extraordinary”

448 Ingle v. Matteucci

circumstance that the legislature anticipated would justify

an untimely claim.

Beginning with the text, ORS 138.510(3) provides:

“A petition pursuant to ORS 138.510 * * * must be filed

within two years of [certain identified events], 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[.]”

(Emphasis added.) The majority interprets that wording to

ask whether a particular petitioner could have asserted a

claim. That is not the most natural reading of the text, how-

ever, which refers to whether “grounds for relief” could “rea-

sonably” have been raised and not whether a specific per-

son had the ability to raise them. This is in contrast with,

for example, the statute that tolls certain statutes of lim-

itations for persons with mental disability, ORS 12.160(3).

That statute provides that, if a person is suffering from a

mental disability at the time a cause of action accrues, “the

statute of limitation for commencing [an] action is tolled for

so long as the person has a disabling mental condition that

bars the person from comprehending rights that the person is

otherwise bound to know.” ORS 12.160(3) (emphases added).

ORS 12.160(3) asks what “the person” could “comprehend,”

showing that the legislature knows how to draft a statute

that places the focus on whether a particular claimant, for

personal reasons, was capable of asserting a claim. It did

not do that in ORS 138.510(3).

Context for understanding ORS 138.510(3) includes

related provisions and this court’s case law, and our cases

have consistently applied a “reasonable person” standard.

See, e.g., Bartz, 314 Or at 359 (explaining that claims per-

missible under the escape clause involve “information that

did not exist or was not reasonably available to a defendant”

within the statute of limitation period, such as newly dis-

covered evidence). In Bartz, the court declined to apply the

escape clause to the petitioner’s claim that his trial coun-

sel had not advised him of a statutory defense, reasoning

that the information needed to assert that claim—the stat-

ute providing for the defense, and trial counsel’s failure to

mention it—was available at the time of conviction. Id. at

Cite as 371 Or 413 (2023) 449

359-60. The resolution of the case was guided by the pre-

sumption that “the ordinary means by which the legislature

publishes and makes available its enactments are sufficient

to inform persons of statutes that are relevant to them.” Id.

The degree to which the petitioner had the actual capacity

to understand the information available to him did not fig-

ure into this court’s analysis.

More recently, in Gutale v. State of Oregon, 364 Or

502, 435 P3d 728 (2019), this court adhered to the holding in

Bartz but clarified that ORS 138.510(3) “requires assessing

both whether the petitioner reasonably could have accessed

the ground for relief and whether a reasonable person in

the petitioner’s situation would have thought to investigate

the existence of that ground for relief.” Id. at 512 (emphasis

added). In Gutale, the petitioner alleged that his trial coun-

sel failed to advise him of the immigration consequences of

pleading guilty. Id. at 506. At the time of that alleged omis-

sion, the United States Supreme Court had held that trial

counsel is required to give such advice. Id. at 505 (discuss-

ing Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed

2d 284 (2010)). Consequently, the information supporting a

post-conviction claim for inadequate assistance of counsel

was available at the time of the petitioner’s conviction. This

court determined, however, that the petitioner had had no

reason to investigate whether his guilty plea would have

“immigration consequences” prior to his detention by fed-

eral immigration authorities, which occurred after the stat-

ute of limitations in ORS 138.510(3) had expired. Id. at 514.

This court’s reference in Gutale to “the petitioner’s

situation” could, at first glance, appear to call for an indi-

vidualized inquiry into a petitioner’s capacity to assert his

or her rights. But the context of that statement in Gutale

shows otherwise. In referring to the “petitioner’s situation,”

the court was distinguishing the escape clause in ORS

138.510(3) from the similarly worded escape clause in ORS

138.550(3). The latter, the “successive petition” bar, pre-

cludes a petitioner from asserting a claim in a successive

post-conviction petition that could have been raised in the

original petition; only a claim “[which] could not reasonably

have been raised” in the original petition may be asserted

450 Ingle v. Matteucci

in a successive petition. Gutale, 364 Or at 518. As this court

explained in Verduzco v. State of Oregon, 357 Or 553, 563-

64, 355 P3d 902 (2015), the untimely-petition escape clause

in ORS 138.510(3) was copied from the successive-petition

escape clause in ORS 138.550(3). See id. at 564 n 9 (“The * * *

legislature borrowed the escape clause from the bar against

successive petitions and inserted it, without modification, in

the bar against untimely petitions.”). We have described the

escape clause in ORS 138.550(3) as codifying “claim preclu-

sion” principles, precluding a claim in a successive petition

that a petitioner’s counsel could reasonably have raised in

the original petition. Id. at 565 (citing Johnson v. Premo, 355

Or 866, 874-75, 333 P3d 288 (2014), as explaining that ORS

138.550(3) “codifies claim preclusion principles”).

Although the escape clause in ORS 138.510(3) was

taken from ORS 138.550(3), the court in Gutale distin-

guished the two in an important respect. We reasoned that,

although our case law has approached the successive-peti-

tion escape clause from the perspective of what a petitioner’s

counsel could reasonably have raised in the original peti-

tion, the untimely-petition escape clause applies in situa-

tions where a petitioner may not have been represented:

“ORS 138.550(3) codifies claim preclusion principles: It

addresses the question of whether a petitioner who already

has litigated a petition for post-conviction relief may return

to court and litigate a second time, and it provides that a

petitioner may not do so where counsel reasonably could

have raised the grounds at issue in that prior litigation.

By contrast, when the bar on successive petitions does not

apply, the inquiry under [ORS 138.510(3)] is whether a

petitioner reasonably could have raised a ground for relief

before any litigation has occurred. The focus of the reason-

ableness inquiry is therefore the petitioner, rather than an

attorney representing the petitioner.”

Gutale, 364 Or at 518-19 (footnotes and emphasis omitted).

In reaching that conclusion, the court in Gutale did

not abandon the “reasonable person” test; it simply clarified

that, for the untimely-petition escape clause, the focus must

be on a reasonable unrepresented petitioner. That the court

did not intend to move away from a “reasonable person”

Cite as 371 Or 413 (2023) 451

standard is confirmed by the court’s comparison of ORS

138.510(3) to a “discovery rule”:

“The resulting standard, therefore, requires assessing

both whether the petitioner reasonably could have accessed

the ground for relief and whether a reasonable person in

the petitioner’s situation would have thought to investigate

the existence of that ground for relief. That standard is

very similar to the standard for a discovery rule, which is

used in other contexts. In negligence cases, for example,

the statute of limitations does not begin until at least the

earlier of two possible events: (1) the date of the plaintiff’s

actual discovery of injury; or (2) the date when a person

exercising reasonable care should have discovered the

injury, including learning facts that an inquiry would have

disclosed.”

Id. at 512 (internal quotation marks and emphasis omitted);

see also Doe v. Lake Oswego School District, 353 Or 321, 332,

297 P3d 1287 (2013) (“The discovery rule applies an objec-

tive standard—how a reasonable person of ordinary pru-

dence would have acted in the same or a similar situation.”).

In a case decided the same day as Gutale, this court reiter-

ated the general understanding that, although individual

characteristics such as mental disability typically allow for

a statute of limitations to be tolled, the commencement of a

statute of limitations, under a discovery rule, turns on an

objective reasonableness standard. Perez-Rodriguez v. State

of Oregon, 364 Or 489, 498, 435 P3d 746 (2019) (“[I]n apply-

ing statutes of limitations, courts frequently consider men-

tal illness or intellectual capacity as part of a statutory or

common-law tolling rule that is separate from the discovery

rule’s reasonableness inquiry. See, e.g., ORS 12.160(3) (con-

sidering whether a ‘person has a disabling mental condition’

at the time a cause of action accrues).”).

By analogizing ORS 138.510(3) to a “discovery rule”

even as it held that a petitioner’s “situation” must be consid-

ered, Gutale made clear that the escape-clause inquiry con-

tinues to be what a “reasonable person” could have timely

asserted. The Court of Appeals below correctly understood

that. Ingle, 315 Or App at 429 (“[T]he court in Gutale itself

considered the petitioner’s ‘situation’ only insofar as it con-

sidered what the petitioner had been told (or not told) about

452 Ingle v. Matteucci

immigration consequences when he entered his guilty plea

and what a ‘reasonable person’ would have understood as a

result. The court did not consider any personal characteris-

tics of the petitioner.” (Citation omitted.)).

The court in Gutale was careful to point out that its

holding had limited implications and did not threaten to let

the escape clause “exception” swallow the “rule”:

“[P]etitioners who were unaware of the immigration conse-

quences of their convictions are a narrow class of petition-

ers. Allowing petitioner’s claim in this case to fall within

the escape clause does not run the risk of having the escape

clause swallow the statute of limitations.”

364 Or at 514.

In holding today that petitioner’s mental illness may

qualify him for relief under the escape clause, the majority

departs from our precedent by displacing the objective “rea-

sonable person” inquiry with an individualized one: whether

petitioner could have asserted a claim in light of his men-

tal impairments. Unlike the “narrow” class of petitioners

that Gutale envisioned might benefit from its holding, the

class of petitioners who will be affected by today’s decision is

potentially large. According to October 2022 data from the

Department of Corrections, for example, 44 percent of adults

in custody were identified as having at least a “moderate”

need for mental health treatment. Nearly 30 percent have

mental health needs that are “severe” or worse.1 Although

that figure does not necessarily mean that 30 percent of

convicted felons will qualify for the escape clause under the

court’s new rule, it is a clue to the potential implications.

And it reveals the unfortunate fact that severe mental ill-

ness is not an “extraordinary” circumstance when it comes

to those convicted of crimes, as the legislature surely would

have understood. The majority states that, even after today,

“the amount of litigation will be limited by the fact that the

bar for establishing that the escape clause applies is high.”

371 Or at 444. Even if the bar for success remains high,

1

See Oregon Department of Corrections, Quick Facts, October 2022, available at:

https://www.oregon.gov/DOC/documents/agency-quick-facts.pdf (accessed Oct 9,

2023). The document states that 1,252 adults in custody, or 10.2 percent of the

prison population, have the “Highest Treatment Need,” while another 2,366, or

19.2 percent, have “Severe Mental Health Problems.”

Cite as 371 Or 413 (2023) 453

however—and that remains to be seen—it seems inevitable

that today’s decision will increase the amount of litigation,

perhaps substantially, by claimants seeking relief under the

escape clause based on their mental impairments.

Nor should one assume that the beneficiaries of

today’s decision will be limited to those with mental illness.

The majority’s rationale is that a person’s mental illness

should be sufficient to trigger the escape clause if it prevents

that person from being able to access, process, and act upon

information in a timely fashion. It is difficult to see why the

same rationale should not apply to other personal character-

istics that have the same effect. Post-conviction courts will

either extend this rule to other mental and physical impair-

ments, disabilities, and disorders or be faced with drawing

elusive and unsatisfactory lines.

Without question, an escape clause so expansive in

scope could be a reasonable policy choice. But it does not

appear to be the policy choice that the legislature made. As

already noted, the text of the statute, as interpreted con-

sistently by this court up through Gutale, contemplates a

“reasonable person” standard, not an inquiry into personal

traits.

The majority’s contextual reasons for concluding

otherwise are not, in my view, persuasive. As already noted,

ORS 138.510(3) was drawn from ORS 138.550(3), which

this court has described as incorporating claim-preclusion

principles. Therefore, as the state argues, both statutes

are worded in a manner typical of discovery accrual rules,

under which statutes of limitations are commenced based

on a standard of objective reasonableness, as opposed to

tolling provisions, which allow those statutes of limitations

to be put on hold for reasons particular to the individual

claimant (such as disability). The majority’s response to that

is that this court has already rejected the view that ORS

138.510(3) should necessarily be interpreted in lockstep with

ORS 138.550(3). That point, while correct, does not help us

understand how ORS 138.510(3) ought to be interpreted. The

central question remains whether the legislature intended

for that statute’s escape clause to turn on an individualized

inquiry rather than an objective reasonableness standard.

454 Ingle v. Matteucci

Rejecting the premise that ORS 138.510(3) should be inter-

preted similarly to ORS 138.550(3) can only show, at most,

that the legislature could have intended for the former to be

an individualized inquiry even though the latter is not. It

does not establish what the legislature actually did intend.

The majority also points out that discovery accrual

rules sometimes do account for personal characteristics—

namely, a claimant’s age. It is true that, in applying a “rea-

sonable person” standard, this court has stated that a claim-

ant’s “status as a minor” is relevant. Doe, 353 Or at 333. But

that is a very different proposition from the one the majority

advances today. The distinction between what juveniles and

adults should be expected to know is objective, pervasive

throughout civil and criminal law, and can be applied with-

out any fact-intensive investigation into a claimant’s per-

sonal capabilities. One can differentiate between a “reason-

able minor” and a “reasonable adult” and still be applying

a “reasonable person” standard. The rule that the majority

announces today, which makes the escape clause an indi-

vidualized inquiry into a claimant’s mental condition and

abilities, severs any link to a “reasonable person” standard,

and I do not understand the majority to contend otherwise.

The majority also suggests that legislators address-

ing the escape clause in 1989 and 1993 would have been

aware of ORS 12.160(3), and therefore would have had in

mind that mental illness is a basis for tolling in other con-

texts. But, as noted earlier, ORS 12.160(3), which is phrased

in terms of what “a person” could “comprehend,” makes

it more significant that ORS 138.510(3) is not similarly

phrased. In addition, ORS 12.160(4) caps the period of tolling

under ORS 12.160(3) at a maximum of five years. Because

the escape clause in ORS 138.510(3) has no temporal limita-

tion, the majority’s reasoning supposes that the legislature

intended to provide a far more liberal allowance for mental

disability in the post-conviction context than it has done for

other civil claims. Given that the legislature in 1989 and

1993 was concerned primarily with reducing the number of

post-conviction filings, it seems unlikely that the legislature

simultaneously intended for the Post-Conviction Hearing

Act to be uniquely generous in accounting for mental illness.

Cite as 371 Or 413 (2023) 455

For the reasons that I have explained, I think the

better interpretation of the text and context is that the leg-

islature intended for the escape clause in ORS 138.510(3) to

incorporate a “reasonable person” standard. The legislative

history that the majority recounts is consistent with that

understanding. The statute of limitations in ORS 138.510(3)

was first added in 1989, when the legislature inserted a

120-day filing requirement, along with an escape clause

to cover “extraordinary circumstances.” Tape Recording,

House Committee on Judiciary, Subcommittee on Crime

and Corrections, HB 2796, Apr 4, 1989, Tape 60, Side B

(comments of Representative Kevin Mannix). During the

1989 deliberations, a representative of the Oregon Criminal

Defense Lawyers Association informed legislators that the

escape clause would be “severely limit[ed].” Tape Recording,

House Committee on Judiciary, Subcommittee on Civil

and Judicial Administration, SB 284, June 12, 1989, Tape

123, Side A (statement of Ross Shepard describing escape

clause as a “severely limit[ed]” exception). Shepard both con-

firmed that the escape clause would be confined to “extraor-

dinary circumstances” and, notably, offered examples of

what would qualify: newly discovered evidence, intervening

changes to the law, or actions by third parties that actively

interfered with a petitioner’s ability to bring a claim. Tape

Recording, House Committee on Judiciary, Subcommittee

on Civil and Judicial Administration, SB 284, June 12,

1989, Tape 122, Side A (describing a hypothetical situation

involving late discovery of evidence of collusion between a

prosecutor and a defense lawyer); Tape Recording, House

Committee on Judiciary, Subcommittee on Civil and Judicial

Administration, SB 284, June 12, 1989, Tape 123, Side A

(referring to a situation where the statute that a defendant

was convicted of violating is later declared unconstitutional).

In 1993, the legislature increased the statute of

limitations period from 120 days to two years. As the major-

ity explains, legislators were concerned that the 120-day

period was too strict. Tape Recording, House Committee

on Judiciary, Subcommittee on Crime and Corrections, HB

2352, Apr 7, 1993, Tape 70, Side A (Representative Kate

Brown commenting, “My concern is the level of folks we’re

working with here, that sixty-seven percent of them don’t

456 Ingle v. Matteucci

have a high school education and a lot of them aren’t even able

to read, and I just think two years is a reasonable statute of

limitations under the folks we’re working with.”). The legis-

lature did not alter the escape clause, which Representative

Mannix described as “a savings clause for unconscionable

situations where the system didn’t work.” Id.

Although it is evident from then-Representative

Brown’s comments that legislators had personal character-

istics in mind in 1993 as a reason to sextuple the statute

of limitations, any reference to personal characteristics is

conspicuously absent from the legislative discussion of the

escape clause in both 1989 and 1993. In those discussions,

legislators contemplated the types of events that might

qualify for relief under ORS 138.510(3) and identified only

extrinsic facts like newly discovered evidence or changes to

the law—matters that are consistent with a standard that

asks what a “reasonable person” could have been expected

to know. Considering the variety of attributes, conditions,

disorders, and characteristics that might affect a person’s

ability to assimilate and act upon available information,

it seems implausible that the legislature intended for such

personal factors to suffice under an escape clause that was

described variously as “severely limited,” meant for nar-

row and “extraordinary” circumstances, and designed for

“unconscionable” situations where “the system failed.”

Because I am not persuaded that the legislature

intended for personal characteristics to inform the ques-

tion of when grounds for relief could “reasonably have been

raised” for purposes of ORS 138.510(3), I respectfully dissent.

Balmer, S. J., joins in this dissenting opinion.