Schultz v. Franke

To review for attachment under ORS 138.580 plain error applies when the petition meets three requirements: the error is an error of law, the legal point is obvious and not reasonably in dispute, and the record is sufficiently well-developed that a court “need not go outside the record or choose between competing inferences” to address the error.

Petitioner appealed a judgment dismissing his petition for post-conviction relief. Petitioner was drinking alcohol with minors in a park. Petitioner fell off a rope swing and hit his head, causing injury. Petitioner then drove the minors in Petitioner’s vehicle, hit a pedestrian, and crashed killing one of the minors. Petitioner made four claims at hearing, but only appealed the court's dismissal of the fourth claim. Claim four stated that Petitioner’s trial counsel failed to call an expert to testify on the effects of Petitioner’s head injury on Petitioner’s driving ability. Petitioner submitted an affidavit from a witness to the head injury, but mentioned that the evidence only refers to the first three claims, and that Petitioner was still looking for evidence to the fourth claim. The Correctional Institution argued that Petitioner failed to preserve his assignment of error for the fourth claim. The Court agreed because Petitioner did not advance an argument about why Petitioner should proceed, and Petitioner also did not rebut the Correctional Institution’s motion to dismiss the claim. Petitioner also argued it is reviewable as plain error that the affidavit was not attached to claim four. The Court disagreed because plain error requires the legal point to be “obvious and not reasonably in dispute.” Because the record reflected that the affidavit did not apply to claim four, the Court held that the dismissal was not plain error. Affirmed.