- Court: Oregon Supreme Court
- Area(s) of Law: Criminal Procedure
- Date Filed: 06-24-2021
- Case #: S067541
- Judge(s)/Court Below: Walters, C.J.; Nakamoto, J.; Flynn, J.; Duncan, J.; Nelson, J.; Garrett, J.; & Landau, S.J.
- Full Text Opinion
Strasser appealed the dismissal of his direct appeal from a judgment for conviction on the basis that his appeal was untimely filed. Strasser filed a handwritten document which was deemed to be notice of appeal by the Court of Appeals. Strasser argued that the Court of Appeals failed to timely respond to his request for appointment of appellate counsel until four days before the 90-day deadline for filing a request for late appeal under ORS 138.071(5)(a), and therefore the bar was inapplicable. Under ORS 138.500(1) and ORS 138.500(2)(b), a written request by a criminal defendant for appellate counsel regarding a judgment that they wish to appeal shall be appointed counsel, and the Court of Appeals has concurrent authority once a notice of appeal is filed. ORS 138.550(2) provides that “petitioner for post-conviction relief may assert ground for relief that could reasonably have been asserted in a direct appeal if petitioner was unrepresented on appeal due to lack of funds to retain counsel and failure of the court to appoint counsel.” The Court held that the bar in ORS 138.550(2) only applies when a petitioner actually obtains direct appellate review and that the lower court failed to appoint counsel. Consequently, Strasser’s claims were not subject to the bar. Strasser did not obtain an appeal, his claims, therefore, were not barred and the post-conviction court erred by dismissing his direct appeal on an incorrect assumption of the applicable statute. Reversed and remanded.