Macon v. Gower

FILED: April 23, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

WYMAN L. MACON,

Petitioner-Appellant,

v.

MICHAEL GOWER,
Superintendent,
Columbia River Correctional Institution,

Defendant-Respondent.

Multnomah County Circuit Court
041010605
A130962

Linda Louise Bergman, Judge.

Submitted on March 18, 2008.

Patrick M. Ebbett and Chilton, Ebbett & Galli, LLC, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Reversed and remanded on specification that "Counsel failed to file a notice of appeal after being requested to do so by the Petitioner"; otherwise affirmed.

PER CURIAM

Petitioner appeals from a judgment, following a trial, denying post-conviction relief. Specifically, before the post-conviction court, petitioner alleged that his trial counsel had been constitutionally inadequate in 20 particulars, including "[c]ounsel failed to file a notice of appeal after being requested to do so by the Petitioner," and that the sentence the trial court imposed was "illegal" in several particulars. The court rejected all of petitioner's claims. On appeal, petitioner challenges only the post-conviction court's rejection of his allegation pertaining to trial counsel's failure to file a notice of appeal after being asked to do so. The state concedes that, under Shipman v. Gladden, 253 Or 192, 199, 453 P2d 921 (1969), the post-conviction court's disposition with respect to that specification was erroneous. We accept that concession as well founded. Id.

Reversed and remanded on specification that "Counsel failed to file a notice of appeal after being requested to do so by the Petitioner"; otherwise affirmed.