Opinion
TC 107084, CA 15265, SC 26884
On motion for reconsideration of petition for review, separate opinion on motion for reconsideration of petition for review May 20, 1980
On Motion for Reconsideration of Petition for Review.
Petition for Review denied April 15, 1980.
Milton Ventura pro se on the motion (prepared by Gary William Holt, Legal Assistant, Oregon State Penitentiary).
No appearance contra.
LINDE, J.
Separate opinion on Motion for Reconsideration of Petition for Review.
Petitioner asks for reconsideration of his petition for review of a decision of the Court of Appeals which affirmed a judgment denying him post-conviction relief. Having previously been convicted and sentenced to consecutive terms of imprisonment, petitioner unsuccessfully sought post-conviction relief on the ground that the consecutive sentences were not authorized by law. The Court of Appeals affirmed the denial of relief without opinion, only citing State v. Jones, 250 Or. 59, 440 P.2d 371 (1968). Ventura v. Cupp, 44 Or. App. 296, 607 P.2d 231 (1980).
Petitioner contends that State v. Jones was superseded by the enactment of the revised criminal code in 1971. Whatever the ultimate merits of that claim, it is not frivolous. Nor is it necessarily foreclosed by the recent decision in State v. Garcia, 288 Or. 413, 605 P.2d 670 (1980). On the other hand, ORS 138.550 (2) provides that after a direct appeal, "no ground for relief may be asserted . . . unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding." Thus apart from State v. Jones, supra, cited by the Court of Appeals for its affirmance, this petition involves the unrelated question whether petitioner's case falls within some exception to the quoted requirement of ORS 138.550 (2), a claim not made or supported in the petition. It seems useful to note this as a renewed caution against unwarranted inferences from a denial of a petition for review. See 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or. 41, 584 P.2d 1371 (1978). Cf. Barnes v. Paulus, 284 Or. 81, 588 P.2d 1084 (1978).