Knope v. Fhuere

No. 242 April 17, 2024 97

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

JAMES M. KNOPE,

Plaintiff-Appellant,

v.

Corey FHUERE,

Superintendent,

Oregon State Penitentiary,

Defendant-Respondent.

Marion County Circuit Court

22CV41356; A180766

Courtland Geyer, Judge.

Submitted March 4, 2024.

Margaret Huntington and O’Connor Weber, LLC, filed

the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Robert M. Wilsey, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

Affirmed.

98 Knope v. Fhuere

HELLMAN, J.

Plaintiff appeals from the trial court’s dismissal

of his petition for a writ of habeas corpus and raises one

assignment of error. For the following reasons, we affirm.

“[I]n reviewing a judgment dismissing a writ of

habeas corpus, we will affirm if the record, viewed in the

light most favorable to the plaintiff, presents no genuine

issue of material fact and the defendant is entitled to prevail

as a matter of law.” Woodroffe v. Nooth, 257 Or App 704, 705,

308 P3d 225, rev den, 354 Or 491 (2013).

Plaintiff’s petition for writ of habeas corpus alleged

the following facts about the underlying criminal case. In

1997, plaintiff was charged with aggravated murder and

murder. In 1999, plaintiff entered into a plea agreement

with the state and agreed to plead guilty to murder. The

agreement stated that his sentence was 300 months impris-

onment. After the agreement was signed, the prosecutor

clarified that he would seek a sentence of life imprisonment

with a mandatory minimum of 300 months imprisonment.1

1

Plaintiff’s plea and sentencing took place at a time of upheaval in Oregon’s

murder sentencing scheme. Although it is not explicitly stated on the record, it

appears that the prosecutor’s change was in response to an October 1999 amend-

ment to ORS 163.115 that allowed the prosecutor to seek such a sentence. In

February 1999, we concluded that the existing sentencing scheme provided in

ORS 163.115 was “constitutionally flawed.” State v. McLain, 158 Or App 419,

426, 974 P2d 727 (1999). Although the statute stated that a person who was con-

victed of murder was required to serve a minimum term before being released,

we explained that the Board of Parole and Post-Prison Supervision (board) had

no legal authority to grant such release. Id. Because the board could not parole

defendants who had been sentenced to life imprisonment after they had served

the minimum term, any sentence under that statute was effectively a life without

parole, or an “imprisonment for life” sentence. Id. To address that constitutional

problem, we held that the correct sentence was a determinate sentence of 300

months imprisonment, with lifetime post-prison supervision. Id. at 427.

In October 1999, the legislature amended ORS 163.115 to correct the consti-

tutional error that we had identified in McLain. Or Laws 1999, ch 782, § 2. That

amendment created a sentence of life with the possibility of parole after 300 months.

Id. We identified the time period between February 17, 1999 and October 23, 1999,

the time when the 300-month determinate sentence was the only lawful choice, as

the “McLain window.” State v. Giles, 254 Or App 345, 348, 293 P3d 1086 (2012).

After the McLain window closed, uncertainty over the legally permissible

sentence for murder committed before the statutory change spawned further

litigation. In several cases, defendants raised ex post facto challenges to their

sentences of life imprisonment with the possibility of parole after 300 months.

We later held that defendants who had committed murder prior to the McLain

window, but who were sentenced after it ended, could be sentenced to life with the

Cite as 332 Or App 97 (2024) 99

At that time, counsel agreed to submit a sentencing memo-

randum and plaintiff did not move to withdraw his plea. At

sentencing, plaintiff was represented by a different attorney

who argued against the prosecutor’s recommendation, both

as a breach of the plea agreement and as an ex post facto

violation.

The court disagreed with plaintiff’s arguments

and sentenced him to life imprisonment with a 300-month

mandatory minimum term. After his direct appeal was

unsuccessful, plaintiff sought post-conviction relief, raising

claims of trial court error and of ineffective and inadequate

assistance of counsel that were primarily related to coun-

sel’s representation concerning his plea. Those claims were

also unsuccessful.

After he had served 300 months in prison, plaintiff

filed a petition for writ of habeas corpus and alleged that,

under the terms of his plea agreement, he was entitled to

immediate release. The trial court dismissed plaintiff’s

petition, agreeing with the state that plaintiff had raised

the same claim in prior litigation (direct appeal and post-

conviction) and that plaintiff was collaterally attacking his

sentence, which was not a cognizable claim in a habeas cor-

pus case. This appeal followed.

We conclude that the trial court did not err in dis-

missing plaintiff’s petition for writ of habeas corpus. Initially,

we pause to observe that no evidence in this record supports

the trial court’s determination that plaintiff’s direct appeal

raised the same claim that is at issue in his habeas cor-

pus petition. Moreover, in his post-conviction case, plaintiff

raised claims of trial court error and of ineffective and inad-

equate assistance of counsel. Here, by contrast, plaintiff

claimed that he is entitled to immediate release because he

possibility of parole after 300 months because “there is no ex post facto violation

in applying retroactively a new and generally ameliorative sentencing statute to

replace the one that was in effect at the time the crime was committed.” State

v. Haynes, 168 Or App 565, 567-68, 7 P3d 623, rev den, 331 Or 283 (2000). And

in Giles, we held that defendants who had committed their crimes during the

McLain window but who were sentenced after the amendments went into effect

could not receive sentences of life with the possibility of parole after serving 300

months in prison because such sentences would violate ex post facto protections.

254 Or App at 351-52. We mention this legal history to recognize the complexity

of the law surrounding plaintiff’s claims in this case.

100 Knope v. Fhuere

“is currently being subjected to continued unlawful physi-

cal restraint and confinement beyond the contractual plea

agreement.” On its face, the claim in this case differs from

those raised in his post-conviction case.

Nevertheless, to maintain his habeas claim for

immediate release, plaintiff had to produce evidence that he

was entitled to release after 300 months. See ORS 34.610(2)

(providing that a prisoner will be discharged if “[t]he orig-

inal imprisonment was lawful, yet by some act, omission

or event which has taken place afterwards, the party has

become entitled to be discharged”). Relying on his signed

plea agreement, plaintiff alleged that he was entitled to

release after he served 300 months in prison. Because he had

completed that sentence, he argued that the Department of

Corrections’ (DOC) failure to release him was a breach of

that agreement. But plaintiff cited no law, and we are aware

of none, that provides that a signed plea agreement estab-

lishes the amount of time a person is lawfully confined to

DOC custody. In fact, the law demonstrates that DOC cal-

culates sentences based on judgments. See, e.g., OAR 291-

100-0027(1) (providing that “staff will review the judgment

document for information that is necessary to properly com-

pute the sentence”). Plaintiff likewise cited no law, and we

are aware of none, that provides that the remedy for breach

of a plea agreement is immediate release from custody.

Essential to plaintiff’s claim, therefore, is a judg-

ment that reflects the terms of his plea agreement, to wit, a

determinate sentence of 300 months of imprisonment. And

under the judgment in plaintiff’s case, he was sentenced to

life imprisonment with the possibility of parole after serving

300 months’ imprisonment, not a 300-month determinate

sentence ending in release. Thus, plaintiff’s claim necessar-

ily includes a collateral attack on his judgment. Because a

collateral attack on a judgment is not cognizable in a habeas

corpus case, the trial court did not err in dismissing plain-

tiff’s petition. See ORS 138.540(1) (“Except as otherwise

provided in ORS 138.510 to 138.680, a petition pursuant to

ORS 138.510 to 138.680 shall be the exclusive means, after

judgment rendered upon a conviction for a crime, for chal-

lenging the lawfulness of such judgment or the proceedings

Cite as 332 Or App 97 (2024) 101

upon which it is based.”); Mora v. Maass, 120 Or App 173,

176, 851 P2d 1154 (1993), aff’d by an equally divided court,

319 Or 570, 877 P2d 641 (1994) (“[P]ost-conviction relief is

the sole method for collaterally challenging the lawfulness

of a criminal conviction and sentence.”).

Affirmed.