Frost v. State of Oregon

“After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present.” ORS 138.620(1).

Petitioner pleaded guilty to multiple crimes and sought post-conviction relief after a hearing involving factual issues was conducted in his absence. He assigns error to the trial court’s decision to conduct this hearing, arguing it violated ORS 138.620(1). “After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present.” ORS 138.620(1). The plain meaning of the statute supports the conclusion that the trial court erred in conducting the hearing without causing Petitioner to be present. Because neither exception stated in ORS 138.620(1) was met, the trial court was required to order Petitioner’s presence. The Court held the error plain and not harmless because there is some likelihood that Petitioner's absence affected the outcome of his post-conviction hearing. Reversed and remanded.