Dillard v. Premo

Under ORS 138.525(3), a judgment dismissing a meritless petition is not appealable. A trial court must not expressly state that a petition is meritless; the dispositive issue whether, in fact, the trial court dismissed the petition on that ground.

Dillard appealed a trial court’s dismissal of a petition for post-conviction relief with prejudice for failure to state a claim. Dillard argued the trial court erred in (1) dismissing the petition for failure to state a claim, and (2) the petition with prejudice under ORS 138.525(4) (“[a] dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel”). After the appellate briefs were filed, Superintendent Premo filed a motion to dismiss for lack of jurisdiction pursuant to ORS 138.525(3) (“ . . . a judgment dismissing a meritless petition is not appealable”). The Court reconciled ORS 138.525 subsections (3) and (4), recognizing that the Oregon Supreme Court had previously held that subsection (4) gives appellate courts the authority to dismiss successive appeals if the petition is meritless, Ware v. Hall, 342 Or 444, 451-52 (2007), and that the language of subsection (3) “is unambiguous: petitions that fail to state a claim are meritless, and a judgment dismissing a meritless claim is not appealable.” Young v. Hill, 347 Or 165, 173 (2009). A trial court need not expressly state that a petition is meritless, and the Court found the allegations in the motion to dismiss and the trial court’s judgment indicated that was the ground on which the trial court dismissed the petition. Appeal dismissed.