Evett v. Nooth
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304 August 16, 2017 No. 398 IN THE COURT OF APPEALS OF THE STATE OF OREGON RICHARD EUGENE EVETT, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 1405850P; A160225 Patricia A. Sullivan, Judge. Submitted July 12, 2017. Jed Peterson and O’Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent. Before Egan, Presiding Judge, and DeHoog, Judge, and Wollheim, Senior Judge. PER CURIAM Reversed and remanded as to Brady claim; otherwise affirmed. Cite as 287 Or App 304 (2017) 305 PER CURIAM Petitioner in this post-conviction case appeals a judgment in favor of the superintendent on all of his postconviction claims based on the post-conviction court’s grant of summary judgment in favor of the superintendent on all of those claims. In the underlying criminal case, petitioner entered a guilty plea and, in 2011, the trial court entered a judgment sentencing him to a term of probation. Soon thereafter, petitioner appeared before the court for a probation violation hearing and, in February 2012, the court revoked petitioner’s probation and sentenced him to a term of imprisonment. The trial court’s judgment was affirmed on direct appeal and petitioner later sought post-conviction relief, which was denied. Petitioner then filed the petition for postconviction relief at issue in this case. In his petition for postconviction relief, petitioner alleged that (1) his trial counsel was inadequate for failing to ensure that petitioner’s criminal history was correctly calculated; (2) the state engaged in prosecutorial misconduct in compiling petitioner’s criminal history; and (3) the state committed a Brady1 violation by failing to produce certain evidence at his probation revocation hearing. The superintendent moved for summary judgment asserting that petitioner’s claims relating to inadequate assistance of counsel and prosecutorial misconduct were untimely and successive. However, the superintendent did not challenge petitioner’s Brady claim, stating that he did “not take issue with the timeliness or initial appearance” of that claim and did “not ask that [that claim] be dismissed by way “of his summary judgment motion. The post-conviction court determined that the petition was time barred and successive, granted the superintendent’s motion for summary judgment, and entered judgment against petitioner on all of his claims, including the Brady claim. On appeal from the resulting judgment, petitioner contends that the post-conviction court erred in granting summary judgment on any of his claims. We reject without discussion petitioner’s contentions regarding his ineffective Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963). 1 306 Evett v. Nooth assistance of counsel and prosecutorial misconduct claims. As to his Brady claim, petitioner asserts that he sufficiently alleged a Brady claim that was properly raised in post-conviction, and that the post-conviction court erred in granting summary judgment in favor of the superintendent on that claim. The superintendent observes that he did not seek summary judgment on petitioner’s Brady claim, and concedes that the post-conviction court erred in sua sponte granting summary judgment and entering judgment against petitioner on that claim. We agree and accept the concession. Accordingly, we reverse and remand as to that claim and otherwise affirm the post-conviction court’s judgment. Reversed and remanded as to Brady claim; otherwise affirmed.
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