by Mark Wilson

The Oregon Court of Appeals reversed a lower court's refusal to appoint counsel on a request for DNA testing, twice. The court instructed that a guilty plea does not foreclose eligibility to file such a request.

Under Oregon law a person who was convicted of aggravated murder, murder, or a sex offense may petition the court that entered the judgment for appointment of counsel at state expense, to assist the person in determining whether to request DNA testing under ORS 138.690 to 138.698. The petition must be accompanied by: (1) an affidavit of indigency; and (2) an affidavit averring that (a) he meets the criteria of ORS 138.690(1), (b) he is innocent of the offenses he was convicted of, (c) the identity of the perpetrator of the crime was at issue during the original prosecution, and (d) he lacks sufficient funds or assets to hire an attorney to represent him in determining whether to file a motion under ORS 138.690. The court "shall grant" a petition for appointment of counsel if those documents are filed and it appears that the person is financially unable to retain counsel. ORS 138.694(2).

Paul Earl Netzler pleaded guilty to two counts of sexual abuse in 2010 and was sentenced to prison. In 2014, he petitioned the sentencing court for appointment of counsel at state expense, pursuant to ORS 138.694, to assist him in deciding whether to request DNA testing under ORS 138.690 to 138.698. The court denied his petition.

Netzler appealed and the parties filed a joint motion for remand. The Court of Appeals granted the motion, effectively vacating the trial court's order and remanding for reconsideration.

On reconsideration, the trial court again denied Netzler's petition for appointment of counsel. Even though Netzler averred in his affidavit that the identity of the perpetrator of the crime was at issue, as required by ORS 138.694(1)(b)(C), the court found that the perpetrator's identity was not at issue, given that Netzler pleaded guilty.

The Court of Appeals reversed, again accepting the State's concession "that the trial court erred in denying defendant's petition for appointed counsel."

The Court noted that Netzler had filed the petition and affidavits required by ORS 138.694(1). It then held that "at the appointment of counsel stage, the trial court is not tasked with evaluating the credibility of the assertions of the affidavit under ORS 138.694(1)(b)." Rather, "the court 'shall grant' the petition for appointment of counsel if a defendant has complied with ORS 138.694(1) and if it 'appears to the court that' the defendant is 'financially

unable to employ suitable counsel.'" See: State v. Netzler, 281 Or App 822, P.3d    (2016).

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