FILED: May 9, 2001

HAL S. ELKINS,

Appellant,

v.

S. FRANK THOMPSON,
Superintendent,
Oregon State Penitentiary,

Respondent.

Appeal from Circuit Court, Marion County.

Richard D. Barber, Judge.

Argued and submitted March 19, 2001.

Eric M. Cumfer argued the cause and filed the briefs for appellant.

Kaye E. McDonald, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Landau, Presiding Judge, and Brewer, Judge, and Ceniceros, Senior Judge.

BREWER, J.

Affirmed.

BREWER, J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. He argues that the trial court committed reversible error by failing to conduct a recorded inquiry when petitioner asked the court to replace his post-conviction attorney due to alleged inadequate representation. (1) We review for abuse of discretion, Temple v. Zenon, 124 Or App 388, 392, 862 P2d 585 (1993), and affirm.

Petitioner shot and killed one person and wounded another at a Salem restaurant in 1993. Petitioner was convicted of murder, attempted murder, and assault in the first degree. He was sentenced to consecutive prison terms of 25 years for murder, 36 months for attempted murder, and a 60-month firearm minimum term for the assault conviction. His convictions were affirmed on direct appeal. State v. Elkins, 134 Or App 218, 893 P2d 580, rev den 321 Or 549 (1995). On May 8, 1996, petitioner filed a pro se petition for post-conviction relief. On May 20, the court signed an order appointing counsel for petitioner and directing that a formal petition be filed by July 19.

On July 5, petitioner sent a letter, with a copy to counsel, to the court stating, in part:

"On June 19, 1996, I wrote [counsel] a letter detailing an additional issue that I wanted him to address in the formal petition, if he felt that it was a viable issue. As of today, July 5, 1996 I have not had any contact or correspondence from [counsel]. I am concerned that there is not enough time to adequately prepare my formal petition.

"Since [counsel] has failed to contact me, I am concerned that he is unable to adequately represent me due to time constraints with other caseload; or, that he is either disinterested, or unable to represent me for some other reason. He has certainly shown no interest in my case to date.

"Because of [counsel's] lack of contact, I hereby move that the court provide a substitute counsel for this proceeding."

On August 13, petitioner filed a formal motion for appointment of new counsel. In an accompanying affidavit, he stated that counsel finally contacted him by letter dated August 1. He attached a copy of counsel's letter to the affidavit. The letter stated, in part:

"I just completed an approximately 7 week trial and I am now catching up on my correspondence. I have extended the due date on your formal petition so that we can meet and add any additional issues that are appropriate to your original petition.

"I anticipate meeting with you in the next couple of weeks."

Petitioner further stated in his affidavit that counsel had not provided him with a copy of the extension request for filing the formal petition and that petitioner was contemplating filing a bar complaint against counsel. Petitioner's affidavit concluded:

"Due to the lack of communication between [counsel] and the petitioner, petitioner believes that [counsel] has failed to represent the best interests of the petitioner. Petitioner believes that his interests would be best served by the appointment of new counsel."

There is no evidence that petitioner requested a hearing or oral argument on his motion for substitute counsel. The case register indicates that the court held a status conference on September 9 and that it denied petitioner's motion at the conference. There is no other record of the status conference. Petitioner apparently was not present at the conference. On October 23, the court issued a written order denying the motion.

On March 3, 1997, counsel filed an amended petition for post-conviction relief that included a new claim that petitioner's "[t]rial counsel failed to impeach the jail nurse's testimony * * *." Counsel represented petitioner at a deposition, filed a trial memorandum and supplemental memorandum, introduced exhibits, including transcripts of the underlying proceeding, and represented petitioner throughout the post-conviction trial. Petitioner made no further complaint to the court about counsel's representation.

The trial court denied petitioner's claims for post-conviction relief, and petitioner appeals from the judgment dismissing his amended petition. Petitioner contends that the trial court abused its discretion in failing to hold a hearing to inquire on the record concerning the complaint underlying his motion for substitute counsel. The primary thrust of petitioner's claim is that the court erred in deciding his motion on the written record, although a subordinate theory appears to be that the court also erred in denying his motion based on the information he presented.

Petitioner relies on several decisions of this court in support of his primary argument. The first is State v. Coffey, 158 Or App 112, 972 P2d 1219 (1999), which was a direct appeal from a criminal conviction. In Coffey, we held that the trial court erred in failing to inquire when the defendant asked for new appointed counsel because, like petitioner here, he believed that his attorney was inadequate because of lack of communication. Id. at 115. In so holding, we relied on State v. Grcich, 148 Or App 337, 939 P2d 649 (1997), where we said:

"We review the denial of a motion for a new court-appointed attorney for an abuse of discretion. State v. Langley, 314 Or 247, 258, 839 P2d 692 (1992). A criminal defendant's complaint about court-appointed counsel, when based on proper grounds, implies an abridgement of the constitutional right to assistance of counsel. Id. When presented with such an issue, a court has an affirmative duty to determine the merits of a request for a new court-appointed attorney on the record; it may not presume that the request is meritless. State v. Bargas-Perez, 117 Or App 510, 513, 844 P2d 931 (1992). The court must inquire into the nature of the request and evaluate the merits of the defendant's complaints, and must allow a defendant to state the reasons in support of a request for a new attorney. State v. Bronson, 122 Or App 493, 497, 858 P2d 467 (1993)." Grcich, 148 Or App at 342.

We also relied on our decision in State v. Heaps, 87 Or App 489, 742 P2d 1188 (1987), where we held that the trial court's "failure to inquire into the nature of the conflict and to evaluate the merits of defendant's complaint concerning his first appointed counsel gave the court no basis on which to determine whether his constitutional right to effective counsel was being honored." Id. at 494.

After reviewing the foregoing authority, we concluded in Coffey:

"Here, defendant's letter to the court explicitly identified particular complaints about the adequacy of representation: Defense counsel 'has not answered any of my phone calls to discuse [sic] my case' and 'has not talked to anyone else involved with it either.' Nevertheless, the court did not inquire further and, particularly, did not 'determine the merits of [the] request for a new court-appointed attorney on the record * * *.' Grcich, 148 Or App at 342. The court, in short, did not satisfy the 'affirmative duty' consistently reiterated, and enforced, in Grcich, Bargas-Perez, Heaps, et al." Coffey, 158 Or App at 116.

Petitioner acknowledges that Coffey and the decisions on which it relies were all direct appeals from criminal convictions. Petitioner also concedes that the Supreme Court has held that the United States Constitution does not require a state to appoint effective counsel in a collateral challenge to a criminal conviction. See Pennsylvania v. Finley, 481 US 551, 557-58, 107 S Ct 1990, 95 L Ed 2d 539 (1987). However, petitioner argues that the rule is different under Oregon law. He contends that the standard for providing a hearing in criminal cases also should apply in post-conviction proceedings, because he has a statutory right to post-conviction counsel, ORS 138.590, inherent in which is the right to "suitable counsel." (2) Petitioner argues that "[e]ither as a matter of statutory construction or under constitutional law," the court was required to inquire on the record as to the basis for his claim that counsel was not providing adequate assistance.

In support of that proposition, petitioner relies on our decision in Combs v. Baldwin, 161 Or App 270, 276-77, 984 P2d 366 (1999). In Combs, at a habeas corpus proceeding, the plaintiff's attorney moved to withdraw, averring in an affidavit that "'[p]laintiff has requested that this office withdraw from his case.'" Id. at 272. The trial court denied the motion at a hearing at which the plaintiff was not present and at which he was not given an opportunity to explain the basis for his request. Id. At the hearing, counsel told the trial court that the plaintiff believed that counsel had a conflict of interest, but counsel said that he did not know what the alleged conflict was. Id. at 272 n 1. Like petitioner here, the plaintiff in Combs relied on authority governing criminal prosecutions, including Bronson, to support his argument that the trial court was required to inquire on the record concerning his complaints. We held that no such duty existed under either the Sixth Amendment to the United States Constitution or Article I, section 11, of the Oregon Constitution, because "'[h]abeas corpus in Oregon is a civil proceeding. The Oregon Constitution guarantees counsel only in criminal proceedings. Or Const, Art I,