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No. 26

January 30, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON KEITH KENDON OGLE, SR., Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 10108394P; A148493

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J. Burdette Pratt, Judge. Argued and submitted May 31, 2012. James N. Varner filed the brief for appellant. Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge. DUNCAN, J. Reversed and remanded.
Petitioner appeals from a judgment dismissing his formal petition for postconviction relief. Petitioner argues that the post-conviction court erred when it granted the state's motion to dismiss his petition for failing to attach "[a]ffidavits, records or other documentary evidence supporting the allegations of the petition," as required by ORS 138.580. Held: The attachment provision of ORS 138.580 requires a petitioner to attach documents that tend to verify, corroborate, or substantiate the assertions that the petitioner has undertaken to prove. The postconviction court erred in granting the state's motion to dismiss because petitioner attached several documents, including the indictment, judgment, trial transcripts, and two affidavits, that tended to corroborate the assertions that he made in his petition. Reversed and remanded.

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Ogle v. Nooth

DUNCAN, J. Petitioner appeals from a judgment dismissing his formal petition for post-conviction relief. Petitioner argues that the post-conviction court erred when it granted the state's motion to dismiss his petition for failing to attach "[a]ffidavits, records or other documentary evidence supporting the allegations of the petition," as required by ORS 138.580. We agree with petitioner and, therefore, reverse and remand. A jury convicted petitioner of second-degree assault constituting domestic violence, possession of methamphetamine, and two counts of endangering the welfare of a minor. The trial court imposed a total sentence of 76 months' imprisonment, with 36 months' post-prison supervision. Petitioner filed an informal petition for postconviction relief on October 18, 2010. The court appointed counsel for petitioner, and petitioner filed a formal petition for post-conviction relief on February 18, 2011. Petitioner alleged that his counsel was ineffective and inadequate in four respects: specifically, (1) in failing to meet with a defense witness before trial; (2) in failing to adequately investigate the victim's hospital records; (3) in failing to present evidence of the victim's medical records during trial; and (4) in failing to cross-examine Dr. Gary Pederson regarding evidence that the victim's injury could have been the result of an abscessed tooth, rather than an assault by petitioner. US Const, Amend VI, XIV (guaranteeing the right to effective assistance of counsel); Or Const, Art I,

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