Snyder v. Amsberry

"ORS chapter 138 contemplates two different courses for resolving post-conviction petitions. On the one hand, a court may appoint counsel, hold a hearing, and, if appropriate, permit amendments to the petition. . . Having followed that course, a court may dismiss the petition with prejudice. . . On the other hand, a trial court may dismiss a meritless petition before appointing counsel and without a hearing but only if it dismisses without prejudice." Ware v. Hall, 342 Or 444, 453 (2007).

Petitioner sought relief from the post-conviction court on the theory that trial counsel failed to investigate his mental condition. The court granted Superintendent summary judgment with prejudice, concluding that medical expert testimony was required to ascertain Petitioner’s mental condition. On appeal, Petitioner assigned error to the summary judgment order. Petitioner argued that the court should have performed a hearing, summary judgment was unmerited, and prejudice ruling was unwarranted. Superintendent argued that Petitioner cannot appeal because his objection was unpreserved. "ORS chapter 138 contemplates two different courses for resolving post-conviction petitions. On the one hand, a court may appoint counsel, hold a hearing, and, if appropriate, permit amendments to the petition. . . Having followed that course, a court may dismiss the petition with prejudice. . . On the other hand, a trial court may dismiss a meritless petition before appointing counsel and without a hearing but only if it dismisses without prejudice." Ware v. Hall, 342 Or 444, 453 (2007). For post-conviction cases, “the court shall proceed to a hearing on the issues raised.” ORS 138.620(1). Despite no objection, appeal is still available “when a party has no practical ability to raise an issue.” Peeples v. Lampert, 345 Or 209, 220 (2008). Here, the Court found that Petitioner had “no practical ability” to object to summary judgment without a hearing, neither was Petitioner required to request a hearing because the court was statutorily required to perform a hearing. Next, the Court found that expert medical testimony is not per se required for Petitioner to meet his burden to show that counsel’s conduct prejudiced the outcome. Therefore, the post-conviction court's ruling erred by dismissing the case with prejudice and absent a hearing. Reversed and remanded.