FILED: September 12, 2001

GERALD WESLEY MILLER,

Appellant,

v.

G. H. BALDWIN,
Superintendent,
Eastern Oregon Correctional Institution,

Respondent.

Appeal from Circuit Court, Umatilla County.

Ronald J. Pahl, Judge.

On appellant's motion for leave to file a notice of appeal after time limits filed January 25, 2001.

Harrison Latto for motion.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, contra.

Before Brewer, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

BREWER, P. J.

Motion for delayed appeal denied.

Armstrong, J., dissenting.

BREWER, P. J.

Petitioner has filed a motion for a delayed appeal from a judgment denying his petition for post-conviction relief. He asserts that his post-conviction counsel's (counsel) failure to file a timely notice of appeal violated his statutory right to suitable counsel. ORS 138.590. He argues that the reasoning of State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d 1193 (1990), in which the Supreme Court created a remedy for the violation of a statutory right to adequate counsel in termination of parental rights proceedings, should be extended to the statutory right to suitable counsel in post-conviction proceedings. Petitioner also relies on State ex rel SOSCF v. Hammons, 169 Or App 589, 10 P3d 310 (2000), in which, based on Geist, we held that a parent whose appointed counsel failed to file a timely notice of appeal from a termination judgment was entitled to a delayed appeal as a remedy for inadequate assistance of counsel. For the reasons set forth below, we decline to extend the rationale of Geist and Hammons to this proceeding, and we deny the motion for delayed appeal.

Petitioner was convicted of two counts of murder. He filed a petition for post-conviction relief, asserting that several errors, including inadequate assistance of criminal trial counsel, resulted in his conviction. On July 24, 2000, the post-conviction trial court entered a judgment denying relief. ORCP 70 B required the court clerk to send notice of entry of the judgment to both parties. (1) However, the trial court administrator notified only the Attorney General's office that the judgment was entered and did not notify petitioner or petitioner's attorney. On September 21, unaware that a judgment had been entered, counsel filed a notice pursuant to UTCR 2.030, reminding the court that the case had been under advisement for more than 60 days. Shortly thereafter, counsel learned that a judgment had, in fact, been entered and then notified petitioner of that fact. On October 18, petitioner sent a pro se notice of appeal to this court. On October 20, counsel mailed to this court both a notice of appeal and a motion for a delayed appeal. Petitioner then filed a request with the trial court for appellate counsel on October 23. On November 6, the trial court appointed appellate counsel for petitioner but appellate counsel was unaware of the appointment until January 8, 2001, when he received a letter from petitioner. On January 26, appellate counsel filed an amended notice of appeal and a more detailed motion for delayed appeal.

Defendant opposes the motion, arguing that in Felkel v. Thompson, 157 Or App 218, 970 P2d 657 (1998), this court determined that ORS 138.650 imposes, without exception, a 30-day time limit for filing a notice of appeal from a judgment denying post-conviction relief. Petitioner argues that he is entitled to a delayed appeal, despite Felkel, because his counsel was unsuitable for failing to file a timely notice of appeal. (2) Defendant responds that we should not create a delayed appeal remedy for any alleged violation of petitioner's statutory right to suitable counsel in this case.

In Felkel, we dispensed with a former practice of allowing post-conviction petitioners to file a late notice of appeal based on a showing of good cause. In following our previous practice, (3) we had relied on ORS 138.071(4)(a), (4) which provides for delayed appeals in criminal cases. We had also relied on ORS 138.650, which provides:

"Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of final judgment on a petition [for post-conviction relief] pursuant to ORS 138.510 to 138.680. The manner of taking the appeal and the scope of review by the Court of Appeals and the Supreme Court shall be the same as that provided by law for appeals in criminal actions * * * ."

We had read ORS 138.071(4)(a) and ORS 138.650 together, concluding that delayed appeals were equally permissible in criminal and post-conviction cases.

In Felkel, we held that the delayed appeal provision of ORS 138.071(4)(a) related to the time, not the manner, of perfecting an appeal, and therefore did not apply to post-conviction proceedings under ORS 138.650. 157 Or App at 221-22. As a result, we concluded "that ORS 138.650 requires, without exception, that appeals from post-conviction judgments be filed and served within 30 days of entry of the final judgment." Id. at 223 (emphasis added). Although Felkel does inform our inquiry, we agree with petitioner that it is not dispositive. Our decision there did not involve an allegation of unsuitable representation by counsel. Thus, we did not consider whether the petitioner had an implied right to a delayed appeal in order to vindicate his statutory right to suitable counsel.

As noted, petitioner relies on Geist, where, on direct appeal, the mother argued that her trial counsel was inadequate. The mother's attorney had been appointed pursuant to former ORS 419.525(2), repealed by Or Laws 1993, ch 33,