Ogle v. NoothAnnotate this Case
The post-conviction court granted petitioner Keith Ogle relief on the ground that, in the underlying criminal case, petitioner’s defense counsel failed to provide adequate and effective representation because he failed to employ an investigator, and that failure prejudiced petitioner. The Court of Appeals reversed, holding that the post-conviction court had erred because it granted petitioner relief on ground that petitioner had not alleged in his post-conviction petition. In doing so, the Oregon Supreme Court determined the Court of Appeals relied on a post-conviction statute, ORS 138.550(3), and cases interpreting that statute, for the proposition that any ground for relief that was not alleged in a petition was deemed waived. The Supreme Court determined the Court of Appeals erred in relying on ORS 138.550(3). "That provision is a res judicata provision. It governs the effect of a post-conviction proceeding on a subsequent post-conviction proceeding. It does not preclude a post-conviction court from addressing an unpleaded ground for relief within a single post-conviction case. Whether a court can address an unpleaded ground for relief is governed by the Oregon Rules of Civil Procedure, and ORCP 23 B allows a court to address an unpleaded ground if it has been tried by express or implied consent." The parties disputed: (1) whether petitioner’s post-conviction petition encompassed the basis on which the post-conviction court granted relief; and (2) if it did not, whether the post-conviction court could grant relief on that basis anyway because the parties litigated it. "Even if the petition did not encompass the basis on which the post-conviction court granted relief, the court could consider that basis because the parties had litigated it."