The Oregon Court of Appeals upheld the dismissal of a mentally ill prisoner's appeal for hanging up from telephonic hearings while the judge was speaking.

Oregon prisoners may file a collateral appeal known as a post-conviction relief (PCR) action. The PCR court appoints counsel and the prisoner generally appears telephonically at hearings.

Christopher Gonzalez-Aguilera filed a PCR action challenging his assault of a public safety officer conviction and 30 month prison term. Gonzalez-Aguilera appeared telephonically and his attorney appeared  in person  at a hearing  on the State's motion to dismiss.

Soon after the hearing began, Gonzalez-Aguilera requested a new attorney. During a discussion of that request, Gonzalez-Aguilera hung up the telephone while the judge was speaking.

Ultimately, the court appointed a new attorney to represent Gonzalez-Aguilera. That attorney filed a response to the State's motion and a new hearing was held.

Gonzalez-Aguilera again appeared telephonically and again hung up on the judge.  The court then asked the State's attorney if there were grounds to dismiss the action for his failure to cooperate. The State orally moved to dismiss for failure to prosecute under ORCP 54B (l), which allows for dismissal when a party fails "to prosecute or to comply with these rules or any order of a court."

Gonzalez-Aguilera's attorney said he was not "ready to brief” that point and did not "know that there is or isn't authority" for dismissal as a sanction. Nevertheless, the court dismissed the action based on Gonzalez-Aguilera's "rudeness to the Court, and his desire to disconnect when the Court rules against him after hearing his legal argument."

Gonzalez-Aguilera's attorney moved for reconsideration, asking the court to "reevaluate Petitioner's actions in light of his mental health history and reconsider its decision accordingly." Counsel offered two exhibits suggesting that Gonzalez-Aguilera was "possibly bipolar,” had a diagnosis of "Schizophrenic Reaction of Childhood," and "feelings of anxiety, depression . . . insomnia" and "a mood disorder." The court denied reconsideration.

The Court of Appeals affirmed. Gonzalez-Aguilera argued that the PCR court erred in dismissing the action because his actions did not constitute a failure to prosecute and the court failed to consider other, less severe sanctions.

He conceded that he did not preserve his arguments, but argued that he should be excused from the preservation requirement because he did not have a "reasonable opportunity" to assert his argument below.

The court disagreed. "Petitioner had a practical ability to alert the post-conviction court to its purported error in dismissing his complaint for lack of prosecution," the court found. "At the hearing, petitioner's attorney signaled to the post-conviction court, in response to the state's motion to dismiss, that he believed it was unclear whether the court could dismiss for failure to prosecute under the circumstances."

Although PCR counsel moved for reconsideration, he "did not make any argument that the court lacked the authority to dismiss the petition for failure to prosecute," the court found. "Rather, petitioner merely requested that the court reconsider its decision in light of the evidence that petitioner submitted about his mental health.  If petitioner believed, as he argues on appeal, that the post-conviction court actually could not properly dismiss his petition for failure to prosecute, the motion for reconsideration would have been an appropriate vehicle for making that argument."

Ultimately, the court concluded that "because petitioner had opportunities both at the hearing and on reconsideration, to bring the alleged error to the attention of the post-conviction court, this is not a case in which we would conclude that petitioner's failure to preserve his claim was excusable." See: Gonzalez-Aguilera v. Premo, 274 Or App 484, _ P3d _ (Or App 2015).

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