- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 09-16-2020
- Case #: A164125
- Judge(s)/Court Below: Lagesen, P.J. for the Court; DeVore, J.; & James, J.
- Full Text Opinion
Petitioner was convicted at trial. After exhausting direct appeals, State v. Stokes, 350 Or 44 (2011), Petitioner sought post-conviction relief. The post-conviction court ordered partial summary judgment for Superintendent. On appeal, Petitioner assigned error upon the court’s denial of (1) trial counsel’s motion to withdraw and of (2) Petitioner’s motion for continuance to assess his motion pursuant to Church v. Gladden, 244 Or 308 (1966). Petitioner argued that court should have granted trial counsel's motion because trial counsel stated that continued representation would be unethical, but that trial counsel was not at liberty to disclose why. Superintendent argued that the matter was controlled by State v. Davis, 345 Or 551 (2008) (holding denial of a motion to withdraw is within post-conviction courts’ discretion). In Davis, 345 Or at 581-82, the Oregon Supreme Court expressly refused to establish per se rules for motions to withdraw. Rather, courts ask whether “counsel [could] adequately perform” under the circumstances. Id. Here, although no such circumstances were evident, the Court found that the post-conviction court accommodated trial counsel’s ethical complications by promising “a lot of latitude” should they arise. Moreover, denial of continuance was proper because Petitioner’s motion was received untimely, i.e. in excess of 45 days after Petitioner’s amended petition was received. Therefore, the post-conviction court "acted within its discretion." Affirmed.