Eklof v. Steward

Under Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (2001), an appellate court may affirm a trial court’s ruling on an alternative basis if, among other things, it can conclude that the record is materially "the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below.”

Petitioner, in this successive action for post-conviction relief, sought review of a Court of Appeals decision that upheld the trial court’s grant of summary judgment for the State on the ground that petitioner’s Brady violation claim was barred as a matter of law under ORS 138.510(3) and ORS 138.550(3). The Court of Appeals affirmed the trial court’s judgment on the alternative basis that “to withstand the state’s summary judgment motion,” petitioner was required, but failed to, “come forward with admissible evidence that would permit a reasonable fact finder to find that the escape clause applied to the Brady claim.” On appeal, Petitioner argued that she is entitled to pursue her Brady violation claim despite the bars against untimely and successive petitions set out in ORS 138.510(3) and ORS 138.550(3). Under Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (2001), “an appellate court may affirm a trial court’s ruling on an alternative basis if, among other things, it can conclude that the record is materially ‘the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below.’” Under Brady v. Maryland, 373 US 83 (1963), a prosecutor’s withholding of favorable evidence from a criminal defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” “[A] petitioner who files a late or successive petition for post-conviction relief that is subject to ORS 138.510(3) or ORS 138.550(3), must allege and ultimately demonstrate that the grounds for relief asserted in the petition could not reasonably have been raised in a timely initial action.” In this case, the State’s sole challenge to petitioner’s Brady claim was that, as alleged, “that claim was insufficient to trigger the escape clause of either ORS 138.510(3) or ORS 138.550(3).” In this case, Petitioner’s allegations included the assertion that the relevant Brady materials “were never disclosed to any attorney working on behalf of Petitioner until . . . delivered to Petitioner’s attorney in this post-conviction” proceeding. The State challenged only Petitioner’s allegations, but did not challenge her ability to prove those allegations. Therefore, the State did not “raise in the motion” the issue whether petitioner would be able to meet her burden of proving that none of the attorneys who had represented her before had knowledge of the Brady materials. The Court held that because it would have been improper for the trial court to grant summary judgment based on the ground that the Court of Appeals identified, that ground did not provide an alternative basis to affirm on appeal. The decision of the Court of Appeals was reversed. The judgment of the circuit court was reversed, and the case was remanded to that court for further proceedings.