S056842, Opinion — Datt v. Hill

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Argued and submitted September 18, 2009, decision of Court of Appeals affirmed
in part and reversed in part; judgment of circuit court reversed, and case remanded
to circuit court for further proceedings February 11, 2010
VERENDRA DATT,
Respondent on Review,
v.
Jean HILL,
Superintendent,
Snake River Correctional Institution,
Petitioner on Review.
(CC 05024238M; CA A130434; SC S056842)
227 P3d 714

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# En Banc

On review from the Court of Appeals .*

Stacy RJ Guise, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.

David J. Celuch, argued the cause and filed the brief for
respondent on review.

WALTERS, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is

\* Appeal from Malheur County Circuit Court, C. Gregory West, Judge. 220 Or
App 657, 188 P3d 384 (2008).

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reversed, and the case is remanded to the circuit court for fur-
ther proceedings.

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# WALTERS, J.

In this post-conviction case, the post-conviction trial
court denied petitioner's claim for relief and recorded on the
judgment that it based its decision on a "failure of proof." In a
divided decision, the Court of Appeals reversed that judg-
ment, concluding that the post-conviction trial court's expla-
nation did not satisfy the requirement of ORS 138.640(1)1
that the post-conviction judgment "clearly state the grounds
on which the cause was determined." Datt v. Hill, 220 Or App
657, 188 P3d 384 (2008). The majority reasoned that ORS
138.640(1) was intended to require post-conviction trial
courts to make findings sufficient to facilitate appellate
review and that, as to one of petitioner's claims, but not
another, the terse explanation "failure of proof" did not meet
that standard. Id. at 665. The dissent asserted that ORS
138.640(1) "does not require express findings" and that an
appellate court's ability to engage in meaningful review is not
the standard that the statute sets. Moreover, the dissent
opined, even if meaningful appellate review were the touch-
stone, the explanation provided by the post-conviction trial
court was minimally adequate. Id. at 668-69 (Rosenblum, J.,
dissenting). We allowed the state's petition for review and,
for reasons that we explain, affirm the decision of the Court
of Appeals in part and reverse in part. We reverse the judg-
ment of the post-conviction trial court and remand for further
proceedings.

The relevant facts are chiefly procedural. A jury con-
victed petitioner of multiple counts of first-degree sexual
abuse and other crimes. He sought post-conviction relief
under the Oregon Post-Conviction Hearing Act, ORS 138.510
to 138.680. Petitioner asserted that the inadequate perform-
ance of his criminal trial counsel resulted in a substantial
denial of his state and federal constitutional rights.2 In

1 ORS 138.640(1) provides, in part:

"After deciding the issues raised in the proceeding, the court shall enter a
judgment denying the petition or granting the appropriate relief. * * * The
judgment must clearly state the grounds on which the cause was determined,
and whether a state or federal question was presented and decided."

2 ORS 138.530(1) provides, in part:

"Post-conviction relief * * * shall be granted by the court when one or more
of the following grounds is established by the petitioner:

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particular, petitioner alleged that counsel had performed
inadequately in two distinct respects: (1) by failing to inter-
view and call a witness, Rogers, to testify at trial; and (2) by
requesting a jury instruction that called unnecessary atten-
tion to petitioner's custodial status.3

Using a standardized three-paragraph form, the
post-conviction trial court issued its judgment denying relief.
In paragraph (1), the court checked boxes to indicate that the
court had considered a "Petition for Post Conviction Relief"
and that the petition was "denied based on the following find-
ings and conclusions." Thereafter, on blank lines provided,
the court inserted "FAILURE OF PROOF." (Capitalization in
original.) In paragraph (2), the court checked boxes to indi-
cate that "[t]his matter involve[d] * * * Federal [and] State
Constitutional issue(s)" and that "[a]ll questions were pre-
sented and decided." Paragraph (3) of the judgment consisted
of a single boilerplate sentence: "This order shall constitute a
final judgment for purposes of appellate review and for pur-
poses of res judicata."

On receipt of the judgment, petitioner sent a letter to
the post-conviction trial court, objecting that the judgment
did not "clearly state the grounds on which the cause was
determined." ORS 138.640(1). The court took no action in
response. Petitioner then appealed. He assigned error both to
the substance of the court's decision-the denial of post-
conviction relief-and to the form of its judgment-its failure
to comply with ORS 138.640(1). The Court of Appeals inter-
preted ORS 138.640(1) to require that a post-conviction trial
court provide an explanation of the basis for its decision suf-
ficient "to enable the appellate court to determine whether
the [post-conviction] trial court committed a legal error that
affected the result." Datt, 220 Or App at 660.

"(a) A substantial denial in the proceedings resulting in petitioner's con-
viction or in the appellate review thereof, of petitioner's rights under the
Constitution of the United States, or under the Constitution of the State of
Oregon, or both, and which denial rendered the conviction void."

3 In his petition for post-conviction relief, petitioner initially asserted five dis-
tinct allegations of inadequate assistance of counsel. On appeal, however, peti-
tioner raised only the two inadequacies described in the text. For that reason, we
do not discuss the other three allegations further.

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On review, the state challenges that interpretation,
arguing that it is not supported by the statute's text, context,
or legislative history. According to the state, a post-conviction
trial court complies with the requirements of ORS 138.640(1)
if it provides a clear indication that it resolved the merits of
each of the "types of claims" that a petitioner asserts. Peti-
tioner, in response, argues that ORS 138.640(1) requires
more. He contends that, to comply with that statute, a post-
conviction trial court must "state the premise, reason, or col-
lection of data (i.e., evidence) on which the cause was
determined."

ORS 138.640(1) requires that a post-conviction judg-
ment "clearly state the grounds on which the cause was
determined."4 "Grounds" is not defined statutorily, and we
therefore give it its "plain, natural, and ordinary meaning."
PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859
P2d 1143 (1993). Used in a legal context, "ground" denotes
"[t]he reason or point that something (as a legal claim or
argument) relies on for validity." Black's Law Dictionary 772
(9th ed 2009) (emphasis added); see also Webster's Third
New Int'l Dictionary 1002 (unabridged ed 2002) (defining
"ground," in part, as "the foundation or basis on which knowl-
edge, belief, or conviction rests") (emphasis added). At first
blush, then, ORS 138.640(1) would seem to require post-
conviction trial courts to state clearly the reason or point, or
foundation or basis, for their judgments.

The state contends that, if this court were to inter-
pret ORS 138.640(1) to require that the reasons for a decision
include a statement of the facts on which that decision is
based, then the court inappropriately would be adding words
to the statute. See ORS 174.010 (court may not insert what
legislature has omitted); Davis v. Campbell, 327 Or 584, 589,
965 P2d 1017 (1998) (same). When the legislature intends to
require findings of fact, contends the state, it uses the term
"finds" or "findings," rather than the term "grounds." For
example, ORS 138.500(1)(b) requires a post-conviction trial

4 In the half century since its passage, the particular subsection with which we
are concerned, ORS 138.640(1), has received little attention in this court's deci-
sions. This court has cited it in only five cases, none of which is relevant to the issue
currently before us. See, e.g., Stelljes v. Maass, 306 Or 655, 657, 761 P2d 925 (1988)
(whether summary judgment could be construed as order disposing of case).

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court to appoint counsel when it "finds" that petitioner is
without funds.5 As another example, ORCP 62 A provides a
procedure by which parties may "demand[ ] prior to the com-
mencement of * * * trial [that] the court * * * make special
findings of fact, and * * * state separately its conclusions of
law thereon."6

Thus, the state asserts, if the legislature had
intended that post-conviction trial courts "find" facts or make
"findings of fact," it would have imposed that requirement
explicitly rather than using the word "grounds" to achieve
that result. Although the state's point is a reasonable one, it
is useful primarily to suggest a negative, viz., that the legis-
lature did not intend to require post-conviction trial courts to
make "findings of fact." The state's point is less useful in help-
ing us to answer definitively what the legislature did intend
when it provided that a judgment must state the "grounds"
on which a decision rests.

To that end, the state suggests that the word
"grounds" has a specific meaning within the context of the
Post-Conviction Hearing Act: it refers to the "types of claims"
raised or decided. As its primary exhibit for that understand-
ing, the state points to ORS 138.530(1), which provides, in
part, that post-conviction relief shall be granted

"when one or more of the following grounds is established
by the petitioner:

"(a) A substantial denial in the proceedings resulting
in petitioner's conviction, or in the appellate review thereof,

5 ORS 138.500(1) is the current version of a requirement that was included in
the Post-Conviction Hearing Act when it originally was enacted. See Or Laws 1959,
ch 636, § 23(1) (circuit court shall appoint counsel "if it finds that petitioner or
defendant is without funds to employ counsel") (emphasis added).

6 ORCP 62 A applies in post-conviction proceedings. See Young v. Hill, 347 Or
165, 171, 218 P3d 125 (2009) (citing Mueller v. Benning, 314 Or 615, 621 n 6, 841
P2d 640 (1992) for proposition that, "unless otherwise provided for in the post-
conviction statutes, Oregon Rules of Civil Procedure apply in post-conviction pro-
ceedings"). Thus, ORCP 62 A is a procedural mechanism by which a party in a
post-conviction case can obtain specific factual findings and separately stated con-
clusions of law on the issues resolved by the judgment.

A similar procedure also existed when the original Post-Conviction Hearing
Act was enacted in 1959. See former ORS 17.430 (1957), repealed by Or Laws 1965,
ch 177, § 1 ("Upon the trial of an issue of fact by the court * * * [a]ll parties appear-
ing in the case shall have the right to request either special or general findings.").

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of petitioner's rights under the Constitution of the United
States, or under the Constitution of the State of Oregon, or
both, and which denial rendered the conviction void.

"(b) Lack of jurisdiction of the court to impose the
judgment rendered upon petitioner's conviction.

"(c) Sentence in excess of, or otherwise not in accor-
dance with, the sentence authorized by law for the crime of
which petitioner was convicted; or unconstitutionality of
such sentence.

"(d) Unconstitutionality of the statute making crimi-
nal the acts for which petitioner was convicted."

(Emphasis added.) Indeed, in that provision of the act, the
legislature appears to have used the word "grounds" to mean
the "types of claims" that a petitioner may bring. The
"grounds" or "types of claims" that give rise to post-conviction
relief are those in which a petitioner asserts a denial of con-
stitutional rights, lack of jurisdiction, excessive sentence, or
the unconstitutionality of a statute.

The state identifies two other statutes within the
Oregon Post-Conviction Hearing Act that use the term
"grounds" in a way that, the state argues, also demonstrates
that that word means "type of claims." ORS 138.550 provides,
in part:

"(2) When the petitioner sought and obtained direct
appellate review of the conviction and sentence of the peti-
tioner, no ground for relief may be asserted by petitioner in
a petition for relief * * * unless such ground was not
asserted and could not reasonably have been asserted in
the direct appellate review proceeding. * * *.

"(3) All grounds for relief claimed by petitioner in a
petition * * * must be asserted in the original or amended
petition, and any grounds not so asserted are deemed
waived unless the court on hearing a subsequent petition
finds grounds for relief asserted therein which could not
reasonably have been raised in the original or amended
petition. * * *. "

(Emphases added.) ORS 138.580 provides, in part:

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"The petition shall set forth specifically the grounds upon
which relief is claimed, and shall state clearly the relief
desired."

## (Emphasis added.)

Both of those provisions reasonably could be read to
use the word "grounds" and the phrases "grounds for relief"
and "grounds upon which relief is claimed" to mean "types of
claims." That is not, however, the only plausible interpreta-
tion of those terms. One also could understand those terms to
refer to the facts that give rise to a claim for relief. In cases in
which this court has considered the effects of a petitioner's
failure to raise a "ground for relief," it has discussed whether
particular facts should have been raised in an earlier peti-
tion. See, e.g., Church v. Gladden, 244 Or 308, 310, 417 P2d
993 (1966) (determining whether "grounds" asserted by peti-
tioner, including that guilty plea was coerced and that indict-
ment was based on inadmissible testimony, should have been
raised in an earlier petition for post-conviction relief). And, in
setting forth the pleading requirements applicable to all civil
actions, ORCP 18 A requires that a party plead the ultimate
facts constituting the "claim for relief."7 It is not inconceiva-
ble that in ORS 138.550 and ORS 138.580 the legislature also
used the term "grounds" and the phrases "grounds for relief"
and "grounds upon which relief is claimed" to refer to the
facts giving rise to a claim for relief.

We need not decide that issue, however, because
those two statutes use those terms and phrases to describe
the necessary components (whether legal or factual) of a peti-
tioner's claim. ORS 138.640(1), the statute that we interpret
in this case, uses the key term "grounds" differently to pre-
scribe, not the components of a petitioner's claim, but the
components of a court's decision. ORS 138.640(1) requires
that a post-conviction trial court "clearly state the grounds on
which the cause was determined." A court does not base its
determination of a cause on the "types of claims" that it
resolves; rather, a court bases its determination on the facts

7 In 1959, when the Oregon Post-Conviction Hearing Act was passed, plaintiffs
in their initial pleading were required to include "[a] plain and concise statement of
the facts constituting the cause of action." Former ORS 16.210(2)(b) (1957),
repealed by Or Laws 1979, ch 284, § 199.

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that it finds to be true and the legal conclusions that it draws
from those facts. That distinction leads us to conclude that,
even though the legislature may have used the term
"grounds" to mean "types of claims" in other provisions of the
Oregon Post-Conviction Hearing Act, the legislature did not
intend that same meaning when it used that term in ORS
138.640(1).

However, what the legislature did intend remains
unresolved, and we turn to the legislative history of the act
for further guidance. See State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009) (after considering text and context, court
considers pertinent legislative history). In 1959, the legisla-
ture enacted the Oregon Post-Conviction Hearing Act as a
comprehensive overhaul of Oregon's procedures for collateral
attacks on criminal convictions. Or Laws 1959, ch 636.8 The
Oregon Post-Conviction Hearing Act is taken from the 1955
Uniform Post-Conviction Procedure Act (UPCPA). Compare
UPCPA, 9B ULA 541 (1957), with Or Laws 1959, ch 636; see also
Jack G. Collins and Carl R. Neil, The Oregon Postconviction-
Hearing Act, 39 Or L Rev 337, 340-41 (1960) (citing UPCPA
as major source for the act). We therefore examine the history
of the uniform act and the context that led to its creation.
See Western Helicopter Services v. Rogerson Aircraft, 311 Or
361, 364, 811 P2d 627 (1991) (consulting Commissioners'
Comments to the Uniform Certified Questions of Law Act to
inform analysis of Oregon statute taken from uniform law).

Beginning in 1867, persons who had been convicted
of crimes in state courts could bring claims of violations
of federal constitutional rights under the federal Habeas
Corpus Act. Act of Feb 5, 1867, ch 28, § 1, 14 Stat 385 (codified
as amended at 28 USC § 2254 (1996)). That law has required,

8 What is now ORS 138.640(1) was section 14 of the 1959 act. That section pro-
vided, in part:

"The order making final disposition of the petition shall state clearly the
grounds upon which the cause was determined, and whether a state or federal
question, or both, was presented and decided."

Or Laws 1959, ch 636, § 14. Although the current version of ORS 138.640(1) refers
to the "judgment" rather than the "order making final disposition," that alteration
does not affect our analysis of what the legislature intended when it required post-
conviction trial courts to "state clearly the grounds upon which the cause was
determined."

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however, that petitioners exhaust all available state reme-
dies before seeking federal relief. 28 USC § 2254(b)(1)(A).9 In
1949, the United States Supreme Court commented on the
difficulties that petitioners faced in pursuing state remedies
and urged that states provide inmates with "some clearly
defined method by which they may raise claims of denial of
federal rights." Young v. Ragen, 337 US 235, 239, 69 S Ct
1073, 93 L Ed 1333 (1949).

In 1952, the Conference of Chief Justices convened a
special committee to study post-conviction issues. In its
report, the committee made seven "Suggestions * * * for the
Improvement of Post-Conviction Procedures in State
Courts," including that states provide mechanisms for
obtaining relief at least as broad as the relief available in fed-
eral court and that "procedural steps which must be taken in
the exhaustion of State remedies * * * be as few, simple and
clearly defined as possible." Report of the Special Committee
on Habeas Corpus to the Conference of Chief Justices, 1
(1953). To address the difficulty of determining whether peti-
tioners had exhausted state remedies, the committee
recommended:

"State courts of first instance or of last resort, in denying
relief in habeas corpus or similar post-conviction proce-
dures, ** * specify whether the judgment is based on pro-
cedural grounds under State law or upon consideration of
the merits of the claim of Federal constitutional right."

Id. The committee explained:

"It ** * appears to be the duty of State courts, wherever
possible, to indicate in the judicial record, or in an opinion,
whether a question of Federal right has been presented and
decided, or whether the case is decided upon State grounds
only. Since the assumption of jurisdiction by the Federal
courts ordinarily depends upon the exhaustion of all State
remedies, it is of vital importance that the procedural steps

9 28 USC § 2254(b) provides, in part:

"(1) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears that-

"(A) the applicant has exhausted the remedies available in the courts of
the State[.]"

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in the State courts should be clearly outlined so that liti-
gants may know when they have exhausted State
remedies."

Id. at App, 12.

In 1954, the National Conference of Commissioners
on Uniform State Laws (NCCUSL) undertook the drafting of
a UPCPA to implement the recommendations of the special
committee. See Commissioners' Prefatory Note to the
UPCPA, 9B ULA at 541-42 (UPCPA intended to create state-
law modifications recommended by the Special Committee
on Habeas Corpus). In 1955, NCCUSL approved the UPCPA
for adoption by the states. Id.

Section seven of the UPCPA contained the analog to
the statute at issue in this case, ORS 138.640(1). That section
provided, in part, that "[t]he order making final disposition of
the petition shall clearly state the grounds on which the case
was determined and whether a federal or a state right was
presented and decided." Id. at 559. The Commissioners' Note
that accompanies the UPCPA is explicit that that require-
ment was included "[t]o assist a federal court in its determi-
nation of jurisdiction in case the petitioner files a claim for
relief in that court." Id. at 560. As noted, federal jurisdiction
depended on whether, before coming into federal court, the
petitioner had pursued available state remedies and sought
in state court the same relief that he or she was seeking in
federal court. The drafters of the UPCPA certainly intended,
therefore, that a post-conviction trial court include in the
"grounds" for a decision denying a claim for post-conviction
relief sufficient information to enable a federal court to deter-
mine whether the denial was based on a petitioner's failure to
comply with state procedural requirements, or whether the
petitioner had appropriately utilized state procedures but
failed to prove the merits of the federal claim asserted.

However, the history of the UPCPA does not indicate
an intent to further require, as petitioner contends, that a
post-conviction trial court articulate its decisions with the
detail that would be required if the legislature had mandated
that the court make findings of fact. Neither does that history

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indicate a more limited intent to require, as the state con-
tends, simple recitation of the "types of claims" that a post-
conviction trial court has resolved. Findings of fact are not
necessary, and identification of types of claims is not suffi-
cient, to provide federal courts with the information that they
need to determine habeas corpus jurisdiction.

Having navigated away from the extremes, we
still find ourselves in the middle of the river. We must deter-
mine how extensive the Oregon legislature intended a post-
conviction trial court's explanation of its reasons to be and
whether the statement, "failure of proof," meets that statu-
tory standard.

As noted, in this case, the Court of Appeals assumed
that the test of the adequacy of the post-conviction trial
court's statement of reasons was whether the court provided
information sufficient to enable appellate review of claimed
error. Datt, 220 Or App at 666. To conduct that assessment,
the Court of Appeals considered the nature of the claims that
petitioner had asserted. Petitioner had alleged that his coun-
sel was constitutionally inadequate in two respects: (1) in
failing to interview a witness, Rogers, and call him to testify
at trial; and (2) in requesting a jury instruction that drew
attention to petitioner's custody status. For both claims, peti-
tioner was obligated to make two distinct constitutional
showings: that counsel failed to exercise reasonable profes-
sional skill and judgment and that petitioner suffered preju-
dice as a result. Trujillo v. Maass, 312 Or 431, 435, 822 P2d
703 (1991).

The Court of Appeals explained that the post-
conviction trial court's statement that it had denied peti-
tioner's claims on the basis of "failure of proof" was insuffi-
cient to enable the appellate court to determine whether
petitioner had failed on one (and if so, which one) or both of
the prongs of his proof. With respect to petitioner's claim that
counsel was inadequate in failing to investigate, the Court of
Appeals concluded that the post-conviction trial court's lack
of specificity precluded appellate review. Datt, 220 Or App at
665. The Court of Appeals reasoned that, if the post-
conviction trial court determined that petitioner had proved
inadequacy, but not prejudice, it committed error. In the view

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of the Court of Appeals, Rogers was an unbiased witness and,
if counsel had been inadequate in failing to interview or call
him, his testimony could have affected the result in the case.
Id. However, if the post-conviction trial court determined
that petitioner had not proved inadequacy, its decision
should be affirmed.

With respect to petitioner's claim that counsel was
inadequate for drawing attention to petitioner's custody
status, the Court of Appeals ruled that a more detailed state-
ment by the post-conviction trial court was not necessary to
appellate review. No matter how the post-conviction trial
court resolved the issue of inadequacy, there could be no prej-
udice because the post-conviction trial court had instructed
the jurors to disregard petitioner's custody status and, absent
evidence in the record to the contrary, the Court of Appeals
would presume that the jurors had acted accordingly. Id. at
667.

Because the Court of Appeals held that compliance
with ORS 138.640(1) turns on whether a post-conviction
judgment provides information sufficient for judicial review,
it reversed the post-conviction trial court's judgment as to the
former claim but affirmed it as to the latter. Id. at 666. We
disagree with the premise for the court's conclusion.10

It is a truism, and an important one, that a post-
conviction trial court can be of great assistance to appellate
courts by making findings of historical facts and explaining
how its conclusions derive from those findings. Petitioners
have the right to request findings of fact and conclusions of
law under the procedure set forth in ORCP 62 A, and, if they
do so, trial courts are required to comply.11 When parties

10 Our statement of explicit disagreement with that aspect of the Court of
Appeals opinion is not intended to indicate agreement with all other aspects of its
decision. For example, we do not intend to indicate agreement with the point that
petitioner necessarily failed to prove prejudice with respect to his claim that coun-
sel was inadequate for requesting a jury instruction that acknowledged his custody
status, Datt, 220 Or App at 667. We simply do not reach that or other issues that we
leave unaddressed.

11 ORCP 62 A provides, in part:

"Whenever any party appearing in a civil action tried by the court so demands
prior to the commencement of the trial, the court shall make special findings of
fact, and shall state separately its conclusions of law thereon. In the absence of
such a demand for special findings, the court may make either general or

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make such a request or courts independently make that
effort, an appellate court is not required to make assump-
tions about how the trial court resolved issues of credibility or
disputed facts. See Ball v. Gladden, 250 Or 485, 487, 443 P2d
621 (1968) (absent express findings of fact, disputed facts
presumed to have been resolved consistently with trial
court's legal conclusion). An understanding of how a post-
conviction trial court actually, rather than presumptively,
arrived at its decision enhances the effectiveness of appellate
review. However, whether appellate courts would benefit
from findings of fact or conclusions of law, does not determine
the meaning of ORS 138.640(1).

We do not discern from the text of ORS 138.640(1), or
its history, a legislative intent to use appellate court interest
as the measure of the adequacy of a post-conviction judg-
ment. Of greater assistance to us in deriving that standard is
the legislature's requirement that the judgment "clearly
state the grounds on which the cause was determined." ORS
138.640(1) (emphasis added). A "clear" statement is one that
is "easily understood: without obscurity or ambiguity."
Webster's at 419.

We conclude that, to be clear, and to enable federal
courts to determine habeas corpus jurisdiction, a judgment
denying claims for post-conviction relief must, at a minimum:
(1) identify the claims for relief that the court considered and
make separate rulings on each claim; (2) declare, with regard
to each claim, whether the denial is based on a petitioner's
failure to utilize or follow available state procedures or a fail-
ure to establish the merits of the claim; and (3) make the
legal bases for denial of relief apparent.12

In this case, the judgment of the post-conviction trial
court meets the first two requirements. By reference to the
petition and the trial court's statement that "all questions
were presented and decided," we can identify the claims that

special findings. If an opinion or memorandum of decision is filed, it will be suf-
ficient if the findings of fact or conclusions of law appear therein."

12 In reaching this result, we do not intend to indicate that post-conviction trial
courts cannot use standardized forms to record their decisions. However, if forms
are used, they must contain all the information required by ORS 138.640(1).

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the court considered and decided: all of the claims that peti-
tioner pleaded. We also can discern, from the court's state-
ment that it denied relief based on a "failure of proof," that
the court reached the merits of petitioner's claims and did not
base its denial of each claim for relief on petitioner's failure to
utilize or follow available state procedures.

However, the judgment of the post-conviction trial
court does not clearly state the legal basis for the court's
denial of each claim for relief. When success on the merits
obligates a petitioner to make two distinct legal showings-
in this case, that trial counsel's performance was constitu-
tionally inadequate and that petitioner suffered prejudice as
a result-a court does not clearly state the legal bases for its
denial of each claim for relief unless it explains, with regard
to each claim for relief, whether petitioner failed to prove one
(and if so, which one) or both of those requirements. In this
case, the judgment does not indicate, as to both of the claims
that petitioner asserted, whether petitioner failed to prove
inadequacy, prejudice, or both. The judgment therefore fails
to meet the standard that ORS 138.640(1) sets.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.