S056820, Opinion — Young v. Hill

165
Argued and submitted June 10, decision of Court of Appeals affirmed;
appeal dismissed October 1, 2009
ELTON JON YOUNG,
Petitioner on Review,
u.
Jean HILL,
Superintendent,
Snake River Correctional Institution,
Respondent on Review.
(CC 06125536P; CAA136732; SC S056820)
218 P3d 125
En Banc
On review from the Court of Appeals.*
* Appeal from Malheur County Circuit Court, Linda L. Bergman, Judge.
Appeal from order denying reconsideration dated November 25, 2008.

James N. Varner, Newberg, argued the cause and submit-
ted the briefs for petitioner on review.
Erin C. Lagesen, Assistant Attorney General, Salem,
argued the cause for respondent on review. With her on the
brief were ,John Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
LINDER,J.
The decision of the Court of Appeals is affirmed. The
appeal is dismissed.

Cite as 347 Or 165 	167
LINDER,J.
This post-conviction case requires us to determine
whether ORS 138.525, which governs meritless petitions for
post-conviction relief, requires petitioner's appeal to be dis-
missed. That statute provides:
"(1) 	The court may, on its own motion or on the motion
of the defendant, enter a judgment denying a meritless
petition brought under ORS 138.510 to 138.680.
"(2) 	As used in this section, 'meritless petition' means
one that, when liberally construed, fails to state a claim
upon which post-conviction relief may be granted.
"(3) 	Notwithstanding ORS 138.650, a judgment dis-
missing a meritless petition is not appealable.
"(4) 	A dismissal is without prejudice if a meritless
petition is dismissed without a hearing and the petitioner
was not represented by counsel."
The Court of Appeals concluded that the trial court's judg-
ment in this case dismissed petitioner's petition as "merit-
less" within the meaning of subsection (2), and that the judg-
ment was, pursuant to subsection (3), not appealable. The
Court of Appeals therefore dismissed petitioner's appeal for
lack of jurisdiction. For the reasons that follow, we conclude
that the Court of Appeals correctly dismissed the appeal.
In 2005, petitioner pleaded guilty to one count of
Computer Crime, a Class C felony, under ORS 164.377. 1 In
1 ORS 164.377 provides, in part:
"(2) Any person commits computer crime who knowingly accesses,
attempts to access or uses, or attempts to use, any computer, computer system,
computer network or any part thereof for the purpose of:
"(a) Devising or executing any scheme or artifice to defraud;
"(bl Obtaining money, property or services by means of false or fraudulent
pretenses, representations or promises; or
"(cl Committing theft, including, but not limited to, theft of proprietary
information.
"(3) Any person who knowingly and without authorization alters, dam-
ages or destroys any computer, computer system, computer network, or any
computer software, program, documentation or data contained in such com-
puter, computer system or computer network, commits computer crime.
"(4) Any person who knowingly and without authorization uses, accesses
or attempts to access any computer, computer system, computer network, or

charging petitioner with that crime, the indictment had
alleged:
"The said defendant on or about the 10th day of
February, 2004, in the County of Clackamas, State of
Oregon, did unlawfully and knowingly access a part of a
computer for the purposes of executing a scheme or artifice
to defraud by manufacturing Oregon identification cards,
said act of defendant being contrary to the statutes in such
cases made and provided, and against the peace and dignity
of the State of Oregon." 2
After accepting petitioner's plea, the trial court sentenced
petitioner to 13 months' imprisonment.
In December 2006, petitioner filed a pro se petition
for post-conviction relief. In May 2007, through appointed
counsel, petitioner filed a formal petition asserting three
post-conviction claims. The three claims shared the common
premise that the indictment had failed to allege a crime
because it did not allege that petitioner accessed a computer
to defraud by manufacturing fake 	Oregon identification
cards. On that premise, petitioner claimed: (1) that he was
denied effective assistance of counsel because trial counsel
failed to inform petitioner that the computer crime count in
the indictment did not allege a crime; (2) that petitioner's
plea of guilty to the charge was not knowingly, voluntarily,
and intelligently made; and (3) that trial counsel was ineffec-
tive because he should have filed a motion to dismiss and a
demurrer to the computer crime count on the ground that it
failed to state a crime.
any computer software, program, documentation or data contained in such
computer, computer system or computer network, commits computer crime.
"(5)(a) A violation of the provisions of subsection (2) or (3) of this section
shall be a Class C felony. Except as provided in paragraph (b) of this subsec-
tion, a violation of the provisions of subsection (4) of this section shall be a
Class A misdemeanor.
"(b) Any violation of this section relating to a computer, computer net-
work, computer program, computer software, computer system or data owned
or operated by the Oregon State Lottery or rented, owned or operated by
another person or entity under contract to or at the direction of the Oregon
State Lottery Commission shall be a Class C felony."
2 The indictment also included a count of forgery in the first degree, ORS
165.013. That count was dismissed pursuant to a plea agreement when petitioner
pleaded guilty the computer crime count.

Cite as 347 Or 165 	169
The state moved to dismiss the petition, asserting
the petition was meritless under ORS 138.525. In support of
the motion, the state argued that the indictment alleged all
the elements of the statute, ORS 164.377(2)(a), differing only
in that it described the particular manner in which petitioner
violated the statute. According to the state, because the
indictment alleged a crime, petitioner's claims of ineffective
assistance of counsel and his challenge to his plea necessarily
failed; therefore, the petition did not state a claim for post-
conviction relief. At the conclusion of a hearing on the state's
motion, the trial court granted the dismissal, explaining:
"And as I indicated, I've read everything that's been
filed in the case. I'm granting the motion. I think the key
issue is the State [pleaded] [inaudible] and would have to
prove at the trial that it was some sort of an attempt to
defraud. I don't think it's a notice problem because it's a
State form with an attempt to defraud. Obviously the defen-
dant is [in] a position to know whether or not he has any-
whether the State has anything to show that it is fraudu-
lent, but that they have [to] prove fraudulent. I don't think
it has to be fake ID cards pled because the statute doesn't
require that if the State proves the scheme to defraud. I
don't think a demurrer would lie here. I think it is [pleaded]
properly, particularly when added to the police report and
what the defendant would have every opportunity to know."
After that oral ruling, the trial court entered a general judg-
ment of dismissal. The judgment stated, in part:
"[U]pon a Motion to Dismiss filed on behalf of the
[state]. Oral argument having been heard by both parties,
the Court now hereby grants the Motion in favor of the
[state] and against the Petitioner.
"NOW THEREFORE, 	IT 	IS 	HEREBY 	ORDERED
THAT the Petition for Post-Conviction Relief is dismissed
in its entirety."
The trial court's judgment did not cite ORS 138.525. Nor did
the judgment recite that the court had concluded that the
petition was meritless or that it failed to state a claim.
Petitioner timely appealed. The state moved to dis-
miss the appeal on the ground that it was not appealable

170
under ORS 138.525(3), which, as noted, provides that a judg-
ment dismissing a post-conviction petition as "meritless" is
not appealable. The appellate commissioner granted the
state's motion. In doing so, the commissioner noted that the
trial court's judgment did not expressly indicate that the trial
court had determined the petition to be meritless. The com-
missioner therefore considered it uncertain whether the trial
court had intended its dismissal to foreclose an appeal pur-
suant to ORS 138.525(3). The commissioner concluded, how-
ever, that he was obligated by controlling Court of Appeals
precedent to dismiss petitioner's appeal. Petitioner asked the
Court of Appeals to reconsider the commissioner's order. The
Court of Appeals, by order, declined to do so. We granted peti-
tioner's petition for review.
On review, petitioner makes two arguments: (1) that
the trial court erred in granting the state's motion to dismiss
the petition for post-conviction relief; and (2) that the Court
of Appeals erred in granting the state's motion to dismiss
petitioner's appeal. Logically, we must address the second
issue first, because if the judgment in this case is not appeal-
able, the appellate courts have no jurisdiction to consider the
case further. We begin, then, with whether the trial court's
dismissal was a "judgment dismissing a meritless petition,"
as that phrase is used in ORS 138.525(3).
As outlined earlier, the statute defines "meritless
petition" as a petition that "when liberally construed, fails to
state a claim upon which 	post-conviction relief may be
granted." ORS 138.525(2). That phrasing is drawn from the
habeas statutes, ORS 34.370(6) and (7),a which similarly
"ORS 34.370(6) and (7) provide:
"(6) The court may, on its own motion, enter a judgment denying a merit·
less petition brought under ORS 34.310 to 34.730.
"(7) As used in this section, 'meritless petition' means one which, when lib·
erally construed, fails to state a claim upon which habeas corpus relief may be
granted."
As the state's brief points out, the legislative history establishes that the provisions
of ORS 138.525, including the definition of a "meritless petition," were drawn
directly from ORS chapter 30, which deals with habeas corpus litigation.
Tape Recording, House Committee on Judiciary, Subcommittee on Crime and
Corrections, HB 2352, Apr 7, 1993, Tape 71, Side A (statement of Ross Shepard).

Cite as 347Or165 	171
address "meritless 	petitions." The phrasing also echoes
ORCP 21 A(8), 4 which authorizes motions to dismiss for fail-
ure to state a claim in civil proceedings generally. See Mueller
u. Benning, 314 Or 615, 621 n 6, 841 P2d 640 (1992) (unless
otherwise 	provided 	for 	in 	the 	post-conviction 	statutes,
Oregon Rules of Civil Procedure apply in post-conviction pro-
ceedings). To plead a claim for relief, a party must allege the
factual basis for a claim for relief, not just the general legal
theory on which the party is proceeding. Holger u. Irish, 316
Or 402, 406-07, 851P2d1122 (1993) (by requiring a party to
state a "claim for relief' rather than a "cause of action,"
Oregon procedural rules require pleader to allege ultimate
facts that provide a basis for relief); see also Davis u. Tyee
Industries, Inc., 295 Or 467, 476-79, 668 P2d 1186 (1983)
(Oregon is a code pleading state; whatever a party's theory of
recovery, the party must allege facts that, if proved, are a
basis on which the party can prevail).
Petitioner contends that the judgment of dismissal
in this case did not fall within the terms of ORS 138.525,
because the trial court dismissed the claims "on the merits"
rather than because the petition failed to state a claim (i.e.,
the petition was "meritless"). Petitioner relies, in part, on the
fact that the judgment did not cite ORS 138.525 and that it
did not state, expressly, that the petition failed to state a
claim or was meritless. We agree with the state, however,
that those omissions, in and of themselves, are not determi-
native. Neither ORS 138.525 nor any other source of law
requires the judgment expressly to designate a petition as
meritless. Nor must the judgment expressly recite that the
dismissal is for failure to state a claim. The only question is
whether, in fact, that is the ground on which the trial court
dismissed the petition.
In this case, we are satisfied that it was. Under the
unambiguous terms of the statute, a post-conviction petition
that fails to state a claim upon which relief may be granted is
a "meritless petition." ORS 138.525(2). The state's theory in
its motion to dismiss was that the common predicate for all
4 ORCP 21 A(8) provides that a party may move to dismiss based on "failure to
state ultimate facts sufficient to constitute a claim."

172 	v. Hill
three of petitioner's claims-that the indictment had to have
alleged that petitioner was using a computer to make fake
Oregon identification cards--was legally wrong. In other
words, the state's position was that no such fact had to be
alleged to charge petitioner with computer crime. If that the-
ory was correct, then petitioner's three claims all necessarily
failed as a matter of law, and they failed on the face of the
allegations of the petition. Arguing that theory, and that the-
ory only, the state maintained that the petition failed to state
a claim for relief and was therefore "meritless" within the
meaning of ORS 138.525(2).
In granting the motion, the trial court orally agreed
with the crux of the state's theory-that is, that the indict-
ment did not have to allege that petitioner was making fake
Oregon identification cards and that the indictment, as
pleaded, had adequately alleged computer crime. The trial
court therefore agreed with the state that the indictment
would not have been subject to a demurrer. The judgment
dismissing the petition expressly stated that the trial court
was doing so "based on the court's granting of the motion to
dismiss." In short, the dismissal of the petition clearly was for
failure to state a claim, and thus for being "meritless" within
the meaning of ORS 138.525(2).n
Petitioner nevertheless argues that we should con-
clude otherwise because, in the course of the hearing on the
state's motion to dismiss, the trial court reviewed and ruled
on the "merits" of petitioner's claims. Petitioner points to the
trial court's statement that it didn't "think that it has to be
We note that a "meritless" petition is not necessarily a "frivolous'' petition.
ORS 138.527 requires the court to award attorney fees against a party who files a
frivolous petition. In a different context, we have interpreted a frivolous appeal to
be one that "a reasonable lawyer would know is not well grounded in fact, or that a
reasonable lawyer would know is not warranted either by existing law or by a
reasonable argument for the extension, modification, or reversal of existing law."
See Westfall v. Rust International, 314 Or 553. 559, 840 P2d 700 (1992) (interpret-
ing ORS 656.390). Because the legislature used both "meritless" and ''frivolous" in
describing certain post-conviction petitions, we can infer that the legislature
intended those two words to have different meanings. See, e.g., Scott v. State Fa.rm
Mutual Auto. Ins., 345 Or 146, 155, 190 P3d 372 (2008) (legislature's use of differ-
ent terms in related statutes demonstrates the legislature's intent that the terms
have different meanings).

Cite as 347Or165 	173
fake ID cards [pleaded] because the statute doesn't require
that[,] if the State proves the scheme to defraud" and that it
didn't "think a demurrer would lie here."
For present purposes, we will accept petitioner's
premise that the trial court's comments touched on the mer-
its of petitioner's claim. Even so, petitioner does not explain
how some consideration of the "merits" is inconsistent with a
ruling that a petition or other pleading fails to state a claim
for relief. Determining whether the particular allegations of
a pleading state a claim entails a legal conclusion, the
"merits" of which may be debatable. A trial court necessarily
must consider the arguments that bear on that legal dispute
to decide whether a petition fails to state a claim. Here, the
trial court reviewed petitioner's petition for relief, reviewed
the indictment (which was attached to the petition), enter-
tained legal arguments in support of and opposition to the
state's motion to 	dismiss, 	and decided 	that 	the state's
position on the motion was correct. Neither the fact that the
court held a hearing on the motion nor the inquiry that the
trial court made to resolve the motion defeats a conclusion
that the trial court's ruling was what it purported to be. The
trial court's oral ruling and judgment were unambiguous: the
trial court granted the state's motion to dismiss for failure to
state a claim. In turn, the statute is unambiguous: petitions
that fail to state a claim are merit]ess, and a judgment
dismissing a petition as meritless is not appealable. ORS
138.525(2), (3).
We recognize the concern, implicit in some of peti-
tioner's arguments, that newly conceived and potentially
worthy theories for post-conviction relief may escape exami-
nation by the appeJlate courts if there is no right to appeal
from any judgment dismissing a petition for failure to state a
claim. 6 The policy that the legislature has adopted, however,
is an unqualified one-no appeal lies from any judgment dis-
missing a petition for post-conviction relief for failure to state
6 In particular, petitioner argues that he has a constitutional right to an appeal
in a post-conviction matter, either under the Due Process Clause or some other pro-
vision in the United States or Oregon constitutions. We reject that argument with-
out further discussion.

174
a claim. 7 Whether we agree or not with the wisdom of that
policy, it is a policy that the legislature is entitled to adopt. 8
The decision of the Court of Appeals is affirmed. The
appeal is dismissed.
1 A potential anomaly exists in the text of ORS 138.525. Subsection (1) confers
authority on a trial court to deny a meritless petition; subsections (3) and (4)
address dismissals of meritless petitions. In particular, subsection (3) prohibits
appeals of judgments dismissing meritless petitions. Neither party, in their argu-
ments to this court, attributes significance to that textual distinction in the stat-
ute. In all events, if there is any significance to the distinction, it cannot avail peti-
tioner in this case. Here, the trial court by general judgment dismissed the petition
for failure to state a claim, which is a disposition that, pursuant to ORS 138.525(3),
cannot be appealed.
8 We note in that regard that we have reviewed the legislative history to make
sure that it reveals no ambiguity that we have failed to perceive in the statute's
terms. State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (text need not be
ambiguous for court to consult legislative history, which may confirm or illuminate
seemingly plain meaning, or may reveal a latent ambiguity in text). The legislative
history reveals the legislature meant exactly what it said-that a meritless post-
conviction petition was one that failed to &tate a claim, and that there would be no
right to appeal the dismissal of such a petition, when the petitioner was repre-
sented by counsel. The legislature further understood that a large number of post-
conviction petitions might fall into the category of"meritless'' petitions, so defined.
See Tape Recording, House Committee on Judiciary, Subcommittee on Crime and
Corrections, HB 2352, Apr 7, 1993, Tape 70, Side A (statement of Ross Shepard).
The provisions regarding the dismissal of meritless petitions represented a com-
promise that Oregon Criminal Defense Lawyers Association supported in order to
obtain the Oregon Attorney General's support for House Bill 2352, which had been
introduced for the purpose of lengthening the statute of limitations for post-
conviction petitions from 120 days to two years. Id.