Behrle v. TaylorAnnotate this Case
Following a bench trial, petitioner Justin Behrle was convicted of three crimes and sentenced accordingly. After entry of judgment and an unsuccessful appeal to the Court of Appeals, petitioner filed a petition for post-conviction relief, alleging one claim of ineffective assistance of counsel, and, in that claim, specified five instances in which his trial counsel allegedly failed to exercise reasonable professional skill and judgment. Petitioner sought an order reversing his convictions and sentences. After a hearing, the post-conviction court found that, although three of petitioner’s specifications were without merit, two were well-taken. As a result, the court stated, it would “overturn the convictions in order [that] they be remanded back to the trial court.” The court then entered a judgment allowing the petition, effectively setting aside petitioner’s convictions and remanding the case to the trial court for a new trial. Defendant (the superintendent) appealed the post-conviction judgment, and petitioner filed a notice of cross-appeal, raising issues on which he had not prevailed in the post-conviction proceedings. The Court of Appeals determined that petitioner’s notice was untimely and dismissed his cross-appeal for lack of jurisdiction. The Oregon Supreme Court allowed review in this case to determine whether the Court of Appeals correctly dismissed petitioner’s cross- appeal as untimely. After it did so, petitioner filed his brief with the Court of Appeals and included cross-assignments of error seeking the same relief that he sought in his cross-appeal. The Supreme Court concluded petitioner’s cross-assignments of error were permitted by ORAP 5.57(2) and that resolving the merits of the issue at issue would no longer have a practical effect on the rights of the parties. The Court therefore dismissed the petition for review as moot.