Full Opinion (html_with_citations)

                                       771

 Argued and submitted June 4; decision of Court of Appeals reversed, and case
   remanded to Court of Appeals for further proceedings December 12, 2019


                  KEITH KENDON OGLE,
                     Petitioner on Review,
                               v.
                       Mark NOOTH,
                       Superintendent,
             Snake River Correctional Institution,
                    Respondent on Review.
          (CC 10108394P) (CA A160243) (SC S066175)
453 P3d 1274

     In a post-conviction case, the post-conviction court granted petitioner relief
on the ground that, in the underlying criminal case, petitioner’s defense coun-
sel failed to provide adequate and effective representation because he failed
to employ an investigator and that failure prejudiced petitioner. The Court of
Appeals reversed, holding that the post-conviction court had erred because it
granted petitioner relief on a basis that petitioner had not alleged in his post-
conviction petition. In doing so, the Court of Appeals relied on a post-conviction
statute, ORS 138.550(3), and its cases interpreting that statute, for the prop-
osition that any ground for relief that is not alleged in a petition is deemed
waived. Held: (1) The Oregon Rules of Civil Procedure apply to post-conviction
proceedings except when they are incompatible with the post-conviction statutes,
and ORCP 23 B directs courts to consider unpleaded issues that are tried by
express or implied consent; (2) the Court of Appeals erred in concluding that ORS
138.550(3) required waiver of claims not contained in the post-conviction peti-
tion, because that statute addresses res judicata and only applies when a peti-
tioner omits a claim from one post-conviction case and attempts to present that
claim in a later post-conviction case; (3) because the parties had fully litigated
the unpleaded ground on evidence that had been introduced without objection,
the unpleaded ground had been tried by implied consent, and ORCP 23 B allowed
the post-conviction court to grant relief on that ground.
    The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings.



    En Banc
    On review from the Court of Appeals.*
   Jason Weber, O’Connor Weber LLC, Portland, argued the
cause and filed the briefs for petitioner on review.
______________
    * Appeal from Malheur County Circuit Court, William M. Horner, Judge.
292 Or App 387
,
424 P3d 759
 (2018).
772                                          Ogle v. Nooth

   Jordan R. Silk, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  DUNCAN, J.
   The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
Cite as
365 Or 771
 (2019)                                773

        DUNCAN, J.

         In this post-conviction case, the post-conviction
court granted petitioner relief on the ground that, in the
underlying criminal case, petitioner’s defense counsel failed
to provide adequate and effective representation because
he failed to employ an investigator and that failure prej-
udiced petitioner. The Court of Appeals reversed, holding
that the post-conviction court had erred because it granted
petitioner relief on a basis that petitioner had not alleged
in his post-conviction petition. Ogle v. Nooth,
292 Or App 387
,
424 P3d 759
 (2018). In doing so, the Court of Appeals
relied on a post-conviction statute, ORS 138.550(3), and its
cases interpreting that statute, for the proposition that any
ground for relief that is not alleged in a petition is deemed
waived.

          For the reasons explained below, we conclude that
the Court of Appeals erred in relying on ORS 138.550(3).
That provision is a res judicata provision. It governs the
effect of a post-conviction proceeding on a subsequent post-
conviction proceeding. It does not preclude a post-conviction
court from addressing an unpleaded ground for relief within
a single post-conviction case. Whether a court can address
an unpleaded ground for relief is governed by the Oregon
Rules of Civil Procedure, and ORCP 23 B allows a court to
address an unpleaded ground if it has been tried by express
or implied consent.

          Here, the parties dispute (1) whether petitioner’s
post-conviction petition encompassed the basis on which
the post-conviction court granted relief and (2), if it did
not, whether the post-conviction court could grant relief on
that basis anyway because the parties litigated it. For the
reasons explained below, we need not resolve the parties’
first dispute because, even if the petition did not encom-
pass the basis on which the post-conviction court granted
relief, the court could consider that basis because the par-
ties had litigated it. Therefore, we reverse the decision of
the Court of Appeals and remand to that court for further
proceedings.
774                                                          Ogle v. Nooth

       I. HISTORICAL AND PROCEDURAL FACTS
A. Underlying Criminal Case
         In the underlying criminal case, the state charged
petitioner with multiple crimes, including second-degree
assault for hitting the complaining witness, SE. The state
based the assault charge on evidence that petitioner had
hit SE while they were in an apartment with another per-
son, Parker. Petitioner admitted that he had hit SE but con-
tended that he had done so in self-defense. He claimed that,
during the incident at issue, SE had hit him repeatedly and
he had hit her once to get her to stop.
         Petitioner was represented by defense counsel.
Defense counsel did not hire an investigator to investigate
petitioner’s self-defense claim.
         Defense counsel subpoenaed Parker to testify at
petitioner’s jury trial. In his opening statement, defense
counsel told the jury that Parker’s testimony would be
“consistent with what she told police,” which, according to
defense counsel, was that she had been in the apartment’s
bathroom when petitioner and SE started fighting and,
when she came out, she saw SE hitting petitioner and then
saw petitioner hit SE once to get her to stop. But, Parker did
not testify as defense counsel said she would. Instead, she
testified that, when she came out of the bathroom, SE was
hitting petitioner and saying that he had hit her. Parker
denied that petitioner had hit SE to make her stop hitting
him, and she denied telling the police that he had done so.
The jury found petitioner guilty of all charges, rejecting his
self-defense claim.
B.    Post-Conviction Proceedings
         Petitioner filed a petition for post-conviction relief.
The petition was later amended, and the operative petition
in this case is the second amended petition.1
    1
      Petitioner filed his initial post-conviction petition himself. Thereafter,
the post-conviction court appointed counsel to represent petitioner, and coun-
sel amended the petition. The superintendent moved to dismiss that petition on
the ground it did not comply with the requirement, established by ORS 138.580,
that supporting documents be attached to post-conviction petitions. The post-
conviction court dismissed the petition, and petitioner appealed. This court
Cite as
365 Or 771
 (2019)                                                  775

          In the second amended petition, petitioner sought
relief pursuant to ORS 138.530, which provides, in part,
that a post-conviction court shall grant a petitioner relief
if the petitioner establishes that, in the underlying crimi-
nal case, there was a “substantial denial” of his or her con-
stitutional rights and that the denial rendered his or her
conviction “void.” Petitioner alleged that he was entitled
to relief because his right to counsel, under both Article I,
section 11, of the Oregon Constitution, and the Sixth
Amendment of the United States Constitution, had been
violated. Specifically, petitioner alleged that defense counsel
had failed to provide constitutionally adequate and effective
representation in three ways: by failing to employ an inves-
tigator, by failing to object to vouching by the prosecutor,
and by failing to prepare petitioner to testify. Petitioner fur-
ther alleged that each of the failures prejudiced his defense.
See Johnson v. Premo,
361 Or 688, 699-700
,
399 P3d 431
(2017) (stating that, to be entitled to post-conviction relief
based on a violation of the right to counsel, under either the
state or federal constitution, “a petitioner must show that
counsel failed to exercise reasonable professional skill and
judgment, and that the petitioner suffered prejudice as a
result”).
         Regarding defense counsel’s failure to employ an
investigator, petitioner alleged that his “central defense was
a claim of self-defense,” and that defense counsel “failed to
employ an investigator to investigate the charges pending
against petitioner or to support his claim of self-defense.” He
further alleged that, as a result of defense counsel’s failure
to employ an investigator, his claim of self-defense “was left
unsupported.” In addition, petitioner identified one way that
employing an investigator would have benefitted his case,
asserting that, “[h]ad trial counsel employed an investiga-
tor, he would have learned there were at least two avail-
able fact witnesses, [petitioner’s parents, the Ogles], who
observed petitioner after the incident * * * and would have
testified he complained of a broken rib as a result of the

reversed the dismissal in part and remanded the case to the post-conviction
court. Ogle v. Nooth,
355 Or 570
,
330 P3d 572
 (2014). New post-conviction counsel
was appointed, and that counsel filed the second amended petition, which is the
petition at issue on review.
776                                            Ogle v. Nooth

fight,” which would have supported petitioner’s claim that
SE had hit him.
         The case proceeded to discovery, and defense coun-
sel was deposed. During his deposition, defense counsel tes-
tified that, before petitioner’s criminal trial, he knew that
Parker had witnessed part of the incident and had made a
statement to the police about it. Defense counsel acknowl-
edged that a witness’s testimony may vary from his or her
prior statements and that hiring an investigator is useful
because, if a witness changes his or her statement, the inves-
tigator can be called to impeach the witness. But defense
counsel did not hire an investigator to interview Parker,
even though he subpoenaed her to testify at trial and relied
on her statement to the police when he made his opening
statement to the jury.
         After discovery, petitioner filed a trial memoran-
dum. In connection with his claim that defense counsel had
failed to hire an investigator, petitioner reasserted that, if
defense counsel had hired an investigator, “he would have
learned that there were at least two available fact wit-
nesses” to petitioner’s injuries sustained in the fight with
the alleged victim, specifically, the Ogles. In addition, he
asserted that defense counsel should have had an investiga-
tor interview Parker “to preserve her statement and ensure
defense [counsel] was knowledgeable about her testimony,”
and that, if defense counsel had done so, he “could have
avoided an appearance of ignorance of the case before the
jury, which also had a tendency to affect the prosecution
against petitioner.”
         Petitioner filed his trial memorandum approxi-
mately one month before trial. On the same day, he filed
exhibits in support of his allegation that defense counsel’s
representation had been inadequate and had prejudiced
him, including a declaration from Parker in support of his
assertion that defense counsel’s failure to employ an inves-
tigator was prejudicial because it adversely affected defense
counsel’s use of Parker as a witness.
        The superintendent filed a trial memorandum in
response. The superintendent did not dispute that defense
counsel had failed to hire an investigator to investigate
Cite as
365 Or 771
 (2019)                                   777

petitioner’s self-defense claim. Nor did he dispute that
defense counsel’s opening statement was inconsistent with
Parker’s testimony. But, he argued that the post-conviction
court “should deny the allegation that [defense counsel]
was inadequate for not hiring an investigator to question
Ms. Parker,” because petitioner had not included that allega-
tion in the second amended petition. In support of that argu-
ment, the superintendent cited a post-conviction statute,
ORS 138.550(3), and Court of Appeals cases interpreting it,
including Bowen v. Johnson,
166 Or App 89
,
999 P2d 1159
,
rev den,
330 Or 553
 (2000), and Leyva-Grave-De-Peralta v.
Blacketter,
232 Or App 441
,
223 P3d 411
 (2009), rev den,
348 Or 114
 (2010), for the proposition that any ground for
relief that is not alleged in the operative petition is deemed
waived.
         The superintendent also argued that, if the post-
conviction court considered the Parker issue, it should reject
it on the merits. He predicted that, at the upcoming trial,
petitioner would not be able to prove that defense counsel’s
failure to hire an investigator to interview Parker was prej-
udicial. Thus, the superintendent addressed the merits of
the issue. He did not seek a continuance to conduct addi-
tional discovery, nor did he identify any way in which he
would be prejudiced if the court considered the issue.
          The case proceeded to trial. At the outset of trial,
the parties and the court discussed the exhibits that the
parties had submitted. The superintendent objected to some
of petitioner’s exhibits, but he did not object to those relating
to the Parker issue, which included Parker’s declaration. The
parties argued the case to the court, and each addressed the
merits of the Parker issue.
         The post-conviction court granted petitioner relief
on the ground that defense counsel’s failure to hire an inves-
tigator constituted ineffective representation and prejudiced
petitioner. Regarding prejudice, the court concluded that
defense counsel’s failure to hire an investigator adversely
affected defense counsel’s use of Parker as a witness. The
court noted that, as defense counsel had acknowledged in
his deposition, having an investigator interview a witness
is useful because, if the witness says something contrary to
778                                             Ogle v. Nooth

his or her prior statement, the investigator can be called to
impeach the witness. The court observed that, in his opening
statement, defense counsel “sort of commit[ted]” to Parker’s
statement to the police, but that Parker “went away” from
that statement in her testimony, which almost “completely
destroy[ed] any self-defense.” According to the court, “[a]n
investigator would have been able to provide [defense
counsel] with information that should have prevented the
embarrassment of having [Parker] testify at odds with what
[defense counsel] had told the jury she was going to say.”
The court granted petitioner’s petition “as to [the] claim of
failing to hire an investigator.” It denied his other claims
relating to the failure to object to vouching by the prosecutor
and the failure to prepare petitioner to testify.
C. Court of Appeals Proceedings
         The superintendent appealed, raising two assign-
ments of error. In his first assignment of error, he asserted
that the post-conviction court had erred by granting relief
“on a ground not alleged in petitioner’s second amended peti-
tion.” As he had in the post-conviction court, the superin-
tendent relied on ORS 138.550(3), and the Court of Appeals
cases construing it, for the proposition that a post-conviction
court cannot grant relief on an unpleaded ground. In his
second assignment of error, the superintendent asserted,
in the alternative, that the post-conviction court had erred
by granting relief because “petitioner failed to establish
prejudice.”
         Petitioner defended the post-conviction court’s
judgment in his favor. In response to the superintendent’s
first assignment of error, petitioner argued that the post-
conviction court had “granted relief on the ground raised
in the petition, failure to investigate.” According to peti-
tioner, the basis for relief remained the same, even though
the court relied on a different theory of prejudice than that
alleged in the petition. Additionally, petitioner argued that
the superintendent had notice of the Parker issue because
petitioner’s trial memorandum “made clear that the fail-
ure to investigate impacted several witnesses’ testimony,
including Parker’s trial testimony.” Petitioner further
argued that the parties had litigated the Parker issue, and
Cite as
365 Or 771
 (2019)                                       779

the superintendent had never suggested, either at trial or
on appeal, that he was prejudiced by the litigation of the
issue. Therefore, petitioner contended, “the outcome of the
proceedings would not have been any different if petitioner
had been required to file an amended petition.”
         In response to the superintendent’s second assign-
ment of error, petitioner argued that defense counsel’s fail-
ure to employ an investigator had prejudiced him because,
as the post-conviction court had found, it adversely affected
his use of Parker as a witness to support petitioner’s claim
of self-defense.
          The Court of Appeals agreed with the superinten-
dent’s first assignment of error. First, relying on Bowen and
Leyva-Grave-De-Peralta, the court reiterated its rule that “a
post-conviction court may grant relief only on a basis that
the petition alleges.”
292 Or App at 391
. Then, it turned to
the question of whether petitioner’s second amended petition
alleged the basis on which the post-conviction court granted
relief. To resolve that question, it again looked to Leyva-
Grave-De-Peralta. In that case, the court had held that “a
post-conviction court errs if it grants relief on a basis that
‘require[s] different proof and different legal analysis.’ ”
Id.
(alteration in original; quoting Leyva-Grave-De-Peralta,
232 Or App at 453
). Applying that test, the Court of Appeals
concluded that the post-conviction court had erred because
   “factually, the focus of [petitioner’s second amended peti-
   tion] was on the alleged failure to investigate and poten-
   tially discover witnesses who could help substantiate
   petitioner’s self-defense claim; the court’s basis for relief,
   however, focused on how additional investigation—and, in
   particular, how having an investigator interview Parker,
   a known witness under subpoena—might have better pre-
   pared counsel for trial and allowed him to avoid the poten-
   tial embarrassment of being contradicted by a witness cen-
   tral to petitioner’s defense.”
Ogle,
292 Or App at 393-94
 (emphases in original).
        Having concluded that the Parker issue was not
within the scope of the second amended petition, the Court
of Appeals turned to petitioner’s argument that his trial
memorandum put the superintendent on notice of the Parker
780                                                Ogle v. Nooth

issue and, therefore, that the superintendent was not prej-
udiced in his ability to prepare for and address that issue.
The court rejected that argument, reasoning that, because
petitioner could have moved to amend the petition, it was
“immaterial that the superintendent was on notice” of the
Parker issue.
292 Or App at 395
. Thus, the court concluded
that, because petitioner had not included the Parker issue in
his petition, he had waived it, and the post-conviction court
could not grant relief based on it, even though the parties
had litigated it and the superintendent had not identified
any way that litigating it had prejudiced him.
          Because the Court of Appeals agreed with the
superintendent’s first assignment of error (that the post-
conviction court should not have considered the Parker
issue), it did not address the superintendent’s second assign-
ment of error (that the post-conviction court erred in con-
cluding that defense counsel’s failure to employ an investi-
gator prejudiced petitioner).
         Petitioner petitioned this court for review, which
we allowed to identify the pleading requirements for post-
conviction petitions, in particular, whether ORS 138.550(3)
precludes a post-conviction court from granting relief on an
unpleaded issue, even if it has been litigated.
                        II. ANALYSIS
         On review, the first question is what pleading rules
apply in post-conviction relief cases, and the second ques-
tion is whether, under those rules, the post-conviction court
erred in granting petitioner relief. We begin with a discus-
sion of the applicable rules.
A. The Pleading Rules for Post-Conviction Cases
      1. The ORCPs
        The ORCPs apply in civil cases; ORCP 1 A provides
that the rules
   “govern procedure and practice in all circuit courts of this
   state, except in the small claims department of circuit
   courts, for all civil actions and special proceedings whether
   cognizable as cases at law, in equity, or of statutory origin
Cite as
365 Or 771
 (2019)                                      781

   except where a different procedure is specified by statute
   or rule.”
Thus, the ORCPs apply in all civil cases, except small claims
cases, unless a different procedure is specified by statute or
rule. Post-conviction cases are civil actions of statutory ori-
gin. Accordingly, this court has held that the ORCPs apply
in post-conviction cases, unless the post-conviction statutes
provide otherwise. 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)).
          The ORCPs include rules that govern the content
and construction of pleadings. ORCP 18 A provides that “[a]
pleading which asserts a claim for relief * * * shall contain
* * * [a] plain and concise statement of the ultimate facts
constituting a claim for relief without unnecessary repeti-
tion.” Under ORCP 18 A, a party must plead facts which,
“if proved, will establish the right to recover.” Davis v. Tyee
Industries, Inc.,
295 Or 467, 479
,
668 P2d 1186
 (1983). ORCP
12 governs how pleadings shall be construed and how courts
shall respond to pleading errors and defects. ORCP 12 A
provides that “[a]ll pleadings shall be liberally construed
with a view of substantial justice between the parties.”
ORCP 12 B provides that “[t]he court shall, in every stage
of an action, disregard any error or defect in the pleadings
or proceedings which does not affect the substantial rights
of the adverse party.” Together, ORCP 18 A and ORCP 12
reflect the view that the purpose of pleadings is to facilitate
fair litigation of the merits of claims. Pleadings serve that
purpose by providing notice of the issues to be addressed. As
this court has explained,
   “ ‘The purpose of requiring an exchange of pleadings is not
   to produce perfection in the statement of the issue but only
   to bring forth into the light the points that are in dispute.
   When those points are sufficiently revealed so that the
   opponent is apprised of what he must meet and the trial
   judge is given sufficient information so that he can rule
   advisedly during the progress of the trial, the pleadings
   have performed their function.’ ”
Adams v. Oregon State Police,
289 Or 233, 240-41
,
611 P2d 1153
 (1980) (quoting Perkins v. Standard Oil Co.,
235 Or 782
                                                   Ogle v. Nooth

7, 19,
383 P2d 107
, modification den,
235 Or 22
,
383 P2d 1002
 (1963)); see also Marsh v. Walters,
242 Or 210, 214
,
408 P2d 929
 (1965) (“[T]he modern view of the function of plead-
ings is that the court should allow reasonable latitude in
order to reach a decision on the merits whenever it is possi-
ble to do so without prejudice to the substantive rights of a
party.”).
        If a claim for relief is not included in a pleading, it
can be added pursuant to ORCP 23. ORCP 23 A provides,
among other things, that a party can amend a pleading once
as a matter of course before a responsive pleading is filed
and, thereafter, with leave of the court or written consent of
the adverse party. ORCP 23 B concerns issues not raised by
the pleadings, and it provides:
       “When issues not raised by the pleadings are tried by
   express or implied consent of the parties, they shall be treated
   in all respects as if they had been raised in the pleadings.
   Such amendment of the pleadings as may be necessary to
   cause them to conform to the evidence and to raise these
   issues may be made upon motion of any party at any time,
   even after judgment; but failure so to amend does not affect
   the result of the trial of these issues. If evidence is objected
   to at the trial on the ground that it is not within the issues
   made by the pleadings, the court may allow the pleadings to
   be amended when the presentation of the merits of the action
   will be subserved thereby and the objecting party fails to sat-
   isfy the court that the admission of such evidence would prej-
   udice such party in maintaining an action or defense upon
   the merits. The court may grant a continuance to enable the
   objecting party to meet such evidence.”

(Emphases added.) Thus, under ORCP 23 B, if an unpleaded
issue is tried by express or implied consent, the issue shall
be treated as if it had been pleaded. In effect, the pleading
is automatically amended; a formal motion to be amend may
be made but is not required. If, however, the adverse party
objects to evidence offered to prove an unpleaded issue, the
pleading is not automatically amended, but the court may
allow it to be amended if “the presentation of the merits of
the action will be subserved” and the adverse party “fails to
satisfy the court that the admission of such evidence would
prejudice” it.
Cite as
365 Or 771
 (2019)                                 783

         To summarize, the ORCPs include rules that gov-
ern pleadings, and those rules establish that (1) a plead-
ing shall allege ultimate facts, ORCP 18 A; (2) when deter-
mining whether a pleading is sufficient, the pleading shall
be liberally construed with a view of substantial justice
between the parties, ORCP 12 A, and the court shall dis-
regard any pleading error or defect that does not affect the
substantial rights of the adverse party, ORCP 12 B; and (3) a
pleading may be amended to include a previously unpleaded
issue, ORCP 23 A and ORCP 23 B, and, if an unpleaded
issue is tried by express or implied consent, the pleading
is, in effect, automatically amended to include that issue,
ORCP
23 B. 2
. The post-conviction statutes concerning pleadings
         The post-conviction statutes include provisions
related to pleadings, and, to the extent that they are incom-
patible with the ORCPs concerning pleadings, they control.
ORCP 1 A (the ORCPs apply in civil cases except where a
statute or rule provides otherwise); Young,
347 Or at 171
 (so
stating for post-conviction cases); see State v. Pearson,
250 Or 54, 58
,
440 P2d 229
 (1968) (ruling that, when one statute
deals with a subject in general terms and another deals with
the same subject in a more minute and definite way, the two
should be read together and harmonized, if possible, with a
view toward giving effect to a consistent legislative policy).
But the post-conviction pleading statutes are not incompat-
ible with the ORCPs; as explained below, they establish the
same basic requirements for the content and construction of
pleadings as the ORCPs.
         ORS 138.580 is the primary post-conviction statute
concerning the content of petitions. It provides, in part, that
a petitioner must file a petition “set[ting] forth specifically
the grounds upon which relief is claimed and * * * stat[ing]
clearly the relief desired.” Thus, ORS 138.580 is similar
to ORCP 18 A, which requires “a plain and concise state-
ment of the ultimate facts constituting a claim for relief,”
and this court has held that ORS 138.580 and ORCP 18 A
impose the same basic specificity requirement for pleadings.
Young,
347 Or at 171
 (applying the general civil pleading
requirement—that one must “allege the factual basis for a
784                                                Ogle v. Nooth

claim for relief, not just the general legal theory on which
the party is proceeding”—to a post-conviction petition).
         Another post-conviction statute, ORS 138.525, pro-
vides that a post-conviction court may enter a judgment dis-
missing a “meritless petition” and that a “meritless petition”
is “one that, when liberally construed, fails to state a claim
upon which post-conviction relief may be granted.” That lan-
guage is similar to that in ORCP 21 A(8), which provides for
dismissals of pleadings that “fail[ ] to state ultimate facts
sufficient to constitute a claim,” and it echoes ORCP 12 A,
which provides that pleadings “shall be liberally construed.”
Thus, ORS 138.525 indicates that the specificity require-
ment for post-conviction petitions is the same as for other
civil pleadings and that, like other civil pleadings, post-
conviction petitions shall be liberally construed. Young,
347 Or at 171
 (equating ORS 138.525(2) and ORCP 21 A(8));
Mueller,
314 Or at 621
, 621 n 6 (noting that ORCP 1 “provides
that the rules of civil procedure are broadly applicable” and
applying ORCP 12’s liberal construction requirement to con-
strue a habeas corpus petition as a post-conviction petition).
        The post-conviction statutes also include a statute
providing for the amendment of petitions: ORS 138.610. It
states that a post-conviction court “may make appropriate
orders as to the amendment of the petition or any other
pleading.” It is a general authorization and is compatible
with
ORCP 23
.
         Nothing about the post-conviction pleading stat-
utes just mentioned—ORS 138.580, ORS 138.525, and ORS
138.610—indicates that the ORCPs do not apply to post-
conviction petitions. To the contrary, the statutes indicate
that, like other civil pleadings, post-conviction petitions
must allege ultimate facts, are to be liberally construed, and
may be amended.
         The Court of Appeals has construed another post-
conviction statute, ORS 138.550(3), as a pleading statute.
Relying on that statute, it has ruled that any ground for
relief that is not raised in a petition is deemed waived and,
therefore, cannot be the basis for relief, even if it is litigated,
as in this case. See, e.g., Leyva-Grave-De-Peralta,
232 Or App at 448-50
.
Cite as
365 Or 771
 (2019)                                    785

         Petitioner argues that the Court of Appeals
has misconstrued ORS 138.550(3). He asserts that ORS
138.550(3) is a res judicata statute. According to petitioner,
ORS 138.550(3) concerns the effect that failure to raise a
ground for relief in one post-conviction case has on a sub-
sequent post-conviction case; it does not preclude applica-
tion of the ORCPs that govern pleadings. For the reasons
explained below, we agree with petitioner and conclude that
the Court of Appeals has erred in relying in ORS 138.550(3)
when determining whether, within a single post-conviction
case, a post-conviction court can grant relief on a particular
basis.
        To interpret ORS 138.550(3), we use our familiar
methodology, looking first to the text and context of the
statute and then to any useful legislative history. State
v. Gaines,
346 Or 160, 171-72
,
206 P3d 1042
 (2009). ORS
138.550(3) provides:
      “The effect of prior judicial proceedings concerning the
   conviction of petitioner which is challenged in the petition
   shall be as specified in this section and not otherwise:
      “* * * * *
       “(3) All grounds for relief claimed by petitioner in a
   petition pursuant to ORS 138.510 to 138.680 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. However,
   any prior petition or amended petition which was with-
   drawn prior to the entry of judgment by leave of the court,
   as provided in ORS 138.610, shall have no effect on peti-
   tioner’s right to bring a subsequent petition.”
         Subsection (3) does provide for waiver of claims that
are not alleged in the original or amended petition. But
the exception makes it clear that the waiver applies only
to future post-conviction petitions: If “the court on hearing
a subsequent petition” concludes that the grounds for relief
could not reasonably have been raised in the “original or
amended petition,” then they are not waived. (A “subsequent
petition” is not an “amended petition,” which is separately
described in the same sentence.)
786                                                              Ogle v. Nooth

         The last sentence of ORS 138.550(3) gives additional
textual confirmation that waiver applies only to a future
post-conviction proceeding. In creating an additional excep-
tion to waiver, that sentence states that there is no waiver if
the “prior petition or amended petition * * * was withdrawn
prior to the entry of judgment.” Waiver thus applies after
the post-conviction proceeding has concluded.
         Nothing about the text suggests the opposite
conclusion—that the failure to include a claim for relief
in the petition waives the claim as to that post-conviction
case. Indeed, the statutory reference to both “original [and]
amended petition[s]” signals that the statute does not
address pleading within a single post-conviction case, but
instead speaks to the relationship between successive post-
conviction cases.
          Statutory context also supports our conclusion that
ORS 138.550(3) applies only to subsequent post-conviction
cases. ORS 138.550 as a whole addresses the relationship
between prior proceedings and later proceedings. The intro-
ductory sentence of the statute states that the statute con-
cerns “[t]he effect of prior judicial proceedings concerning
the conviction of petitioner.” Subsections (1) and (2) address
the relationship between the direct appeal of a criminal con-
viction and the post-conviction case.2 Subsection (3), as we
noted, addresses the effect of one post-conviction proceed-
ing on a future post-conviction proceeding. Finally, subsec-
tion (4) addresses the effect of post-conviction petitions that
had been filed prior to the post-conviction statute becoming
effective in 1959.3
   2
       Those subsections provide, in part:
       “(1) The failure of petitioner to have sought appellate review of the con-
   viction, or to have raised matters alleged in the petition at the trial of the
   petitioner, shall not affect the availability of relief under [the post-conviction
   statutes]. * * *
       “(2) When the petitioner sought and obtained direct appellate review of
   the conviction and sentence of the petitioner, no ground for relief may be
   asserted by petitioner in a petition for relief under [the post-conviction stat-
   utes] unless such ground was not asserted and could not reasonably have
   been asserted in the direct appellate review proceeding. * * *”
   3
     That subsection provides, in part:
        “(4) Except as otherwise provided in this subsection, no ground for
   relief under [the post-conviction statutes] claimed by petitioner may be
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365 Or 771
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          Our case law and the legislative history also support
the conclusion that ORS 138.550(3) applies only to subse-
quent post-conviction petitions. This court has reviewed the
legislative history and concluded that ORS 138.550(3) was
intended to apply the doctrine of claim preclusion to succes-
sive post-conviction petitions. See Gutale v. State of Oregon,
364 Or 502, 516
,
435 P3d 728
 (2019) (ORS 138.550(3) “cod-
ifies claim preclusion principles: It addresses the question
of whether a petitioner who already has litigated a petition
for post-conviction relief may return to court and litigate
a second time, and it provides that a petitioner may not do
so where counsel raised, or reasonably could have raised,
the grounds at issue in that prior litigation”); Johnson v.
Premo,
355 Or 866, 874-75
,
333 P3d 288
 (2014) (discuss-
ing history of ORS 138.550(3) and explaining that legisla-
ture intended to overrule common-law doctrine in habeas
corpus that “a decision in one [habeas corpus] case did not
bar relitigating the same or similar issues in a subsequent
proceeding”).
         We therefore agree with petitioner that ORS
138.550(3) concerns only successive post-conviction cases.
It prohibits a petitioner who omits a claim from one post-
conviction case from presenting that claim in a later post-
conviction case, unless the petitioner can show that the claim
could not reasonably have been raised earlier. But it does not
require a court to apply “waiver” within the confines of the
same post-conviction case. Therefore, the Court of Appeals
has erred in relying on it to hold that, if a petitioner fails to
raise a ground for relief in the operative petition in a post-
conviction case, the post-conviction court cannot grant relief
on that ground in that case.
          Because we conclude that ORS 138.550(3) does not
govern whether a particular ground for relief can be the basis
for relief within a single post-conviction case, we return to
the ORCPs to determine whether the post-conviction court
erred in granting petitioner relief in this case.

   asserted when such ground has been asserted in any post-conviction pro-
   ceeding prior to May 26, 1959, and relief was denied by the court, or when
   such ground could reasonably have been asserted in the prior proceeding.
   * * *”
788                                              Ogle v. Nooth

B.    Whether the Post-Conviction Court Erred in Granting
      Petitioner Relief
         On review, the parties disagree about whether peti-
tioner’s second amended petition encompassed the basis on
which the post-conviction court granted relief. Petitioner
contends that it did because it alleged that defense counsel
failed to employ an investigator to investigate petitioner’s
claim of self-defense and that, as a result, that defense
was left unsupported at trial. The superintendent, on the
other hand, contends that the petition did not encompass
the basis on which the post-conviction court granted relief
because it did not allege that defense counsel’s failure to
hire an investigator left his claim of self-defense unsup-
ported because it adversely affected his use of Parker as a
witness.
         We need not resolve the parties’ dispute regard-
ing whether the second amended petition encompassed the
basis on which the post-conviction court granted relief. That
is because, under ORCP 23 B, if an unpleaded issue is tried
by express or implied consent, the trial court shall treat the
pleading as if it has been amended to include the issue; a for-
mal amendment is not required. Thus, in this case, even if
the second amended petition did not raise the Parker issue,
the post-conviction court could grant relief on the issue, if it
was tried by express or implied consent. The superintendent
did not expressly consent to trial of the issue, so the question
is whether he implicitly consented.
          For the purposes of ORCP 23 B, whether an
unpleaded issue has been tried by implied consent depends
on whether the adverse party objected to the admission of
evidence that was clearly directed to the new issue. The text
of ORCP 23 B indicates that; it distinguishes between cases
in which an issue is “tried by express or implied consent”
and cases in which “evidence is objected to at the trial.”
Thus, a party’s failure to object to evidence that is clearly
directed to a new issue constitutes implicit consent to trial
of that issue. Our decision in Whinston v. Kaiser Foundation
Hospital,
309 Or 350
,
788 P2d 428
 (1990), overruled in part
on other grounds by Shoup v. Wal-Mart Stores, Inc,
335 Or 164
,
61 P3d 928
 (2003), illustrates that.
Cite as
365 Or 771
 (2019)                                        789

         In Whinston, the plaintiff brought a medical mal-
practice action against multiple defendants, including a
Dr. Porter. In his complaint, the plaintiff alleged that Porter
“was negligent,” in one or more particulars, including “[i]n
failing to diagnose [p]laintiff’s cirrhosis of the liver.”
309 Or at 354
. On review, the defendants argued that that alle-
gation was deficient. Specifically, they argued that a “mere
failure to diagnose is not negligence” and “is actionable
only where is it caused by some departure from standards
of due care.”
Id. at 354-55
 (internal quotation marks omit-
ted). According to the defendants, the plaintiff should have
alleged “how Dr. Porter was negligent, i.e., that Dr. Porter
failed to perform a ‘work-up’ conforming to the standard of
care.”
Id. at 355
 (emphasis in original). They further argued
that “[the] plaintiff recognized the deficiency in his plead-
ing, when, during trial, he moved to amend to plead a ‘defec-
tive work-up.’ ”
Id.
 That motion was denied, but at trial the
plaintiff presented evidence that Porter negligently failed
to perform a work-up, and the defendants did not object to
that evidence. Consequently, this court concluded that, even
assuming that the plaintiff’s pleading was deficient, it was
automatically amended to conform to the new theory and
supporting evidence presented at trial. We explained:
       “Even if we assume that defendants are correct in their
   assertion that plaintiff’s pleading is deficient, such asser-
   tion will not aid defendants here. The flaw in defendants’
   argument is that it runs afoul of ORCP 23 B. Under that
   rule, a party may amend a pleading to conform to the evi-
   dence, thus raising an issue not raised by the pleading. A
   party may also amend to raise an issue ‘tried by express or
   implied consent of the parties.’ Moreover, ORCP 23 B pro-
   vides that failure to amend ‘does not affect the result of the
   trial.’ Thus, a pleading for all practical and legal purposes is
   automatically amended whenever an issue not raised by the
   pleading is tried by consent.

      “* * * * *

      “By not objecting to [testimony about Porter’s failure to
   perform a work-up], defendants, in the circumstances of this
   case, effectively consented to the trial of the allegation that
   Dr. Porter negligently failed to perform a work-up relating to
   the diagnosis of plaintiff’s cirrhosis.”
790                                               Ogle v. Nooth
Id. at 355-56
 (emphases added; footnotes omitted). Thus,
even when a motion to amend a pleading to include an issue
has been denied, if evidence clearly directed to that issue is
admitted at trial without objection, the pleading is automat-
ically amended to conform to the evidence.
         Similarly, in Kendricks v. Mychal Thompson
Enterprises, Inc.,
107 Or App 453
,
812 P2d 38
 (1991), the
Court of Appeals held that, if evidence relating to an issue
outside the scope of a pleading is admitted without objec-
tion, the pleading may be amended to conform to the evi-
dence, even if prior motions to amend had been denied. In
Kendricks, the defendant made multiple motions to amend
its answer to include the defense of recission, but the motions
were denied.
Id. at 455
. Then, at trial, the defendant intro-
duced evidence to support the defense, and the plaintiff did
not object to that evidence.
Id. at 455-56
. The defendant then
moved to amend its answer to conform to the evidence, and
the trial court granted that motion. The plaintiff appealed,
arguing that, because the defendant’s earlier motions to
amend its answer had been denied, “[p]laintiff had a right
to rely” on the earlier denials and “properly should have felt
free not to object to evidence of a recission.”
Id. at 456
 (inter-
nal quotation marks omitted). The Court of Appeals rejected
that argument, stating that “[n]o principle of reliance * * *
excuses a party from objecting to evidence that is outside
the scope of the pleading or makes evidence that has been
introduced without objection unavailable as the basis for an
amendment to conform to the proof under ORCP 23 B.”
Id.
        Thus, this court has held that, if evidence clearly
directed to an issue outside the scope of the pleadings is
admitted without objection, the issue has been tried by
implied consent and the pleading shall be treated as if it has
been amended to conform to that evidence. Whinston,
309 Or at 355-56
. And, both this court and the Court of Appeals
have held that the fact that a motion to amend has been
denied does not relieve a party from the obligation to object
to evidence. Id.; Kendricks,
107 Or App at 456
.
        In this case, the parties fully litigated the Parker
issue based on evidence clearly directed to that issue.
Petitioner raised the issue in his trial memorandum, which
Cite as
365 Or 771
 (2019)                                   791

was filed approximately one month before trial, along with
exhibits, including Parker’s declaration. In response, the
superintendent asserted in his trial memorandum that the
post-conviction court could not grant relief based on the
Parker issue because petitioner had not alleged it in the
second amended petition. But the superintendent did not
move to exclude petitioner’s evidence regarding the Parker
issue, nor did he seek additional time to respond to that
issue; instead, he addressed the merits in his trial memo-
randum. In his reply, petitioner asserted both that the sec-
ond amended petition encompassed the issue and that the
superintendent would not be prejudiced by the court’s con-
sideration of it. The case then proceeded to trial. At the out-
set of trial, the parties and court discussed the exhibits that
had been submitted. The superintendent objected to some of
petitioner’s exhibits, but he did not object to those relating to
the Parker issue, including Parker’s declaration. Thereafter,
the parties argued the case to the court, and each party
addressed the merits of the Parker issue.

         Thus, at the end of the trial, the post-conviction
court was faced with a situation where the parties had had
a pretrial disagreement about whether the second amended
petition encompassed the Parker issue, with the superinten-
dent asserting that, under ORS 138.550(3), any unpleaded
ground for relief is waived. As we have explained, that inter-
pretation of ORS 138.550(3) is incorrect. Then, at trial, the
superintendent did not object to evidence clearly directed to
the Parker issue and did not identify any way that the court’s
consideration of the issue would prejudice him. Instead, the
superintendent addressed the merits of the issue. In that
situation, the post-conviction court did not err in granting
petitioner relief based on the Parker issue because, contrary
to the superintendent’s assertion, the issue was not waived,
and, even assuming that it was not within the scope of the
petition, it had been tried with the implicit consent of the
superintendent. Therefore, under ORCP 23 B, the court
could treat the petition as if it has been amended to include
the issue.

        As we noted previously, in the Court of Appeals, the
superintendent raised two assignments of error, asserting
792                                            Ogle v. Nooth

that the post-conviction court erred in considering the
Parker issue and, in the alternative, that the post-conviction
court erred in granting relief on that issue because, in the
superintendent’s view, petitioner failed to establish that
he was prejudiced by defense counsel’s failure to hire an
investigator. Because the Court of Appeals agreed with the
superintendent’s first assignment of error, it did not reach
his second. Consequently, we remand this case to the Court
of Appeals for consideration of that assignment of error.
        The decision of the Court of Appeals is reversed and
the case is remanded to the Court of Appeals for further
proceedings.