Hererra-Alvarez v. Miller

420 October 7, 2026 No. 925 IN THE COURT OF APPEALS OF THE STATE OF OREGON LUIS HERERRA-ALVAREZ, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 23CV31580; A186835 Erin K. Landis, Judge. Submitted August 14, 2026. Claire Powers and Equal Justice Law filed the briefs for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Jose Garcia-Fuerte, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge.* EGAN, J. Affirmed. ______________ * Determined by a two-judge department as authorized by ORS 2.570(2)(b). Cite as 353 Or App 420 (2026) 421 EGAN, J. Petitioner appeals a judgment entered after the court granted summary judgment on his claims for post- conviction relief. Petitioner argues that the judgment failed to satisfy ORS 138.640(1), as construed in Datt v. Hill, 347 Or 672, 685, 227 P3d 714 (2010) (holding that a judgment denying claims for post-conviction relief must, at a mini- mum, “(1) identify the claims for relief that the court consid- ered 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 proce- dures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent”). The state responds that defendant invited any error by approv- ing of the form of the judgment prepared by the state and that, at the very least, any error is not plain. We agree with the state that any error is not plain and therefore affirm. Even assuming defendant did not invite the error he now raises on appeal, it is unpreserved. See Dudrov v. State of Oregon, 274 Or App 636, 638-39, 361 P3d 647 (2015), rev den, 358 Or 794 (2016) (holding that petitioners are not excused from the obligation to preserve a claim of error based on the form of judgment where the court’s process provides an opportunity to object to the form before the judgment is entered). We may consider an unpreserved claim of error if, among other things, the legal point is obvious—that is, not reasonably in dispute. State v. Brown, 310 Or 347, 355, 800 P2d 259, (1990). The error here does not meet that standard. The post-conviction court’s judgment explicitly referenced its previous written order granting summary judgment, and that order explicitly incorporated the court’s findings on the record. Those on-the-record findings explained that the court was reaching the merits of petitioner’s claims of inef- fective assistance of trial and appellate counsel, and that the court was concluding that petitioner failed to create a genuine issue of material fact as to inadequate or ineffec- tive assistance and as to prejudice on both claims. Whether a judgment with that type of incorporation by reference is insufficient under Datt is at least subject to reasonable dis- pute. Compare Asbill v. Angelozzi, 275 Or App 408, 413, 365 422 Hererra-Alvarez v. Miller P3d 587 (2015), rev den, 358 Or 794 (2016) (holding that “the requirement that a judgment denying post-conviction relief ‘make the legal bases for denial of relief apparent,’ [Datt, 347 Or at 685], can be met by oral findings that the post- conviction court makes on the record and incorporates into the judgment by reference”) with Himebaugh v. Taylor, 277 Or App 18, 22, 369 P3d 446 (2016) (distinguishing Asbill where “the judgment form in this case does not include any reference to the court’s oral findings”). Affirmed.