Gonzalez-Aguilera v. Premo

In reviewing a claim for plain error, the Oregon Court of Appeals has the ability to use their discretion to correct the error.

Gonzalez-Aguilera appealed a judgment which dismissed his post-conviction relief petition for failure to prosecute. Gonzalez-Aguilera filed a claim that he received ineffective assistance of counsel. During two separate post-conviction hearings, Gonzalez-Aguilera, appearing by telephone, hung up the telephone during the middle of the hearings, once while the judge was speaking. Due to Gonzalez-Aguilera terminating proceedings by hanging up the telephone, the post-conviction court dismissed the complaint for failure to prosecute. Gonzalez-Aguilera claimed that the post-conviction court plainly erred in dismissing his petition because the court did not examine other possible and less severe penalties for hanging up the phone during trial. This Court concluded that Gonzalez-Aguilera’s attorney expressed that he was not ready to discuss whether the post-conviction court had authority to dismiss Gonzalez-Aguilera’s case for failure to prosecute but never actually objected. Moreover, when Gonzalez-Aguilera petitioned for reconsideration of the dismissed petition, he failed to advance an argument that the post-conviction court lacked authority to dismiss his petition for failure to prosecute. This Court, therefore, concluded that if a plain error did indeed occur, this was not a case that would warrant exercising the Court's discretion to correct the error. Affirmed.