*1 Argued May 4, reversed and remanded October Appellant, LEE
WILLARD
CLARK,
Respondent.
GLADDEN,
Helen B. Assistant General, Salem, argued respondent. cause for With her on the Attorney brief Robert Y. Thornton, was General, Salem.
Before and Justice, Chief Perry, McAllister, Denegre and Jus-
Sloan, O’Connell, Lusk, Goodwin, tices. J.
GOODWIN, prisoner serving A an enhanced sentence as a appeals judgment from a which de- habitual criminal postconviction relief. The court a de- nied sustained petition alleging murrer a that the to Okla- Missouri, sentencing which and Texas convictions homa, applying court had considered recidivist of counsel and other law were invalid because of denial constitutional defects. preliminary question, we must decide
As challenge right his has lost his whether the by raising questions foreign at the not his hearing a habitual crim he was found to be inal. resentencing prisoner appeared un-
When to chal- fit 168.015to he did see der ORS 168.085, foreign lenge any foreign Five convictions. of his alleged against admitted and he convictions were him, He in each of the cases. that he had been convicted represented hear- time of the counsel at the alleged concerning question ing, and counsel raised no argues now The state deficiencies. constitutional questions by failing at the to raise sentencing fail- 168.085 under ORS time of his ques- ing appeal to raise these he waived his would have been better time. While it at a later tions timely objection procedure in the court have made considering prisoner’s status as ha- which was *4 pro- bringing these new instead bitual criminal question ceedings another circuit court, before by statute. waiver is controlled statutory concerning only provision waiver following: former convictions is the of defenses to proof shows ex ORS 168.075. “Unless ception under of a former subsection conviction (1) (4) or of OES defendant waives 168.015, by hearing exception claim failure to it at the allegations on the of the information.” provide: The two referred to subsections “(1) ORS 168.015. ‘Conviction’ means ad judication ing guilt upon plea, a’ verdict or find proceeding competent in a in a criminal court of jurisdiction, but ‘conviction’ does not include an adjudication by expunged pardon, which has been nuga set aside or otherwise reversed, rendered tory. “ (4) Except under OES 166.230 and 167.050, felony’ not a conviction is ‘former conviction of if:
“(a) The offense was committed when the de- years age; fendant was under 16 “(b) That conviction was rendered after the principal felony; commission of the “(c) It is defendant’s most recent convic- (3) tion described subsection of this section, finally unconditionally and the defendant discharged resulting imprisonment, proba- all from parole years tion or more seven than before principal felony; commission of the or “(d) by That conviction was court-martial of only military an offense denounced law and only triable court-martial.” statutory language relevant to this case is that of the definition of a “conviction” which excludes “an adjudication expunged by pardon, has re- aside, nugatory.” set versed, otherwise rendered *5 prisoner us construe the words “or The would have nugatory” meaning “or other- rendered as otherwise nugatory.” appar- adjudicated to be state wise meaning ently read the words as “or would have us nugatory.” otherwise deemed ambiguity by Difficulty kind created the of the spe- New York a obviated in our statute has been reads: cific amendment in “* * * previous provided that no however, any shall be util- other state in this or conviction ized pursuant tion was multiple predicate treatment a offender as * * * convic- article if such to this rights the in violation of obtained provisions applicable person under accused States. constitution of United previous objection conviction that a “An may unconstitutionally at this be raised obtained person ac- inform the shall so and the court time objection entered in shall be an Such cused. by the with- court, determined and shall be record per- jury. empanelling The failure of a out challenge previous conviction accused to son provided a constitute herein shall manner in the any allegation part of unconstitu- on his waiver good tionality for his failure cause be shown .unless * * challenge timely Y Laws *.” N Sess to make § 1. ch Assembly provides Legislative such clear our Until provided New statutory York, has been as direction statutory language present “or other- our we construe light “has nugatory,” the terms rendered wise as re- “expunged,” aside,” and “set “reversed,” been” prisoner accomplished act to relieve quiring an judgment. alternative unconstitutional of the and hold disregard “has been,” words would challenge failure of the mere that the grounds spelled former conviction other on than those (1) (4) out in 168.015 and OES itself waiver of the questions. to raise such Since such could intent expressed very have in a few words, was not, we do not believe such an intent can be inferred. Our statutory language construction of the is fortified Legislative Assembly provided the fact that our has comprehensive postconviction in the elsewhere code remedy appears apply on its which, face, to the problem kind of now before us. *6 138.510(1) ‹
Under ORS a has a statu tory right, tardily may petition however he to act, grievances long for of redress so as the questions presented actually were not decided in his proceedings by express former nor otherwise barred (2) › . (1), terms of the statute. See OES 138.550 language restricting post- of 138.510 ORS persons conviction relief to a “convicted of crime under pris the laws of this state” bar likewise does not this principal oner. The conviction started the chain ‹ ORS “Except provided 138.540(1). as otherwise in ORS person 138.540, any convicted of a crime under the laws of this may petition post-conviction pursuant file a for state relief to ORS to 138.510 138.680.” › proceedings judicial ORS 138.550. “The effect of * ** * specified shall be as in this section and not otherwise: petitioner sought “(1) appellate The failure to of have re- conviction, alleged view of his or to have raised matters in petition availability at trial, his his shall not affect of relief =s * * proceeding But no under ORS 138.510 to shall 138.680 pursued appellate conviction, be motion for new while direct review his of judgment trial, motion in arrest or remains available. “(2) sought appel- the his conviction and When obtained direct ground sentence, late review relief no for * * * may ground be asserted was asserted unless such not reasonably appel- and could late review have asserted not direct ** proceeding *.
636 leading present was an sentence Ore- events gon burglary. for is conviction conviction This meaning (1). 138.510 While the within ORS being challenged principal on the conviction ultimately guilt innocence, issue of sentence challenged. being as the result thereof is Sub- entered (1) specifically (c) makes section of ORS 138.530 nnconstitntionality ground post- aof sentence a conviction relief. Oregon postconviction not, statute does
While say unconstitutionality many words, so proceedings judgments foreign can be reached deny- brought there is reason for under the no statute, 'by Oregon judgments ing law are relief when such Oregon Collins and See allowed affect sentences. Hearing Act, 39 Or Postconviction Neil, (1960). where there Minnesota, L In Rev postconvietion the court reached the same statute, no corpus by shaping fit the situation. habeas result Tahash, ex Holm rel 272 Minn See State (1965). NW2d question courts of this
The next is whether the judg- attacks entertain collateral state should *7 in entered of other ments of conviction courts judgments and if so the extent to which such states, may New York has settled re-examined. noted, be As question statute. IV, clause of Article full-faith-and-credit § States is offended of the United Constitution 1, by properly re collateral attack. No state is limited a foreign quired convictions in sen notice of take tencing Each own criminal laws. those violate its who foreign give such force convictions free to state is proper sen- in the administration local as it deems
637 tencing policy. The of each deter- courts state must which convictions meet mine constitutional standards carrying legislative policy out the of their own re- challenge foreign laws. cidivist while a to a Thus, sentencing may proceeding conviction in local take form a collateral attack, there no constitu- disallowing e.g., for tional reason such attack. See, — Coffey, People v. Cal2d 430 P2d 60 —, Cal 15, (1967); Rptr 457 re Woods, In 64 Cal2d 409 P2d 3, Rptr (1966); Dalrymple, 48 Cal 913, 689 State v. 75 (1965); N Mex 407 P2d 356 United States ex rel (2d 1962). LaNear v. LaVallee, F2d Cir See also noted in cases Norton, Gideon the Habitual (1966). Statutes, Criminal L 6 Washburn 24J Oregon may, An convict, therefore, when charged being under ORS 168.055with a habitual crim allege thereby inal, defects and call into question one more of his convictions. allegations Oregon legal
If his meet standards sufficiency, allegations and if his are admitted or proven, sentencing disregard court will the con- thereby constitutionally victions found defective. Oyler See v. Boles, US 82 Ct 7 L S Ed (1962). 2d 446 treating foreign
There is reason no for convic differently Oregon carrying tion than an conviction in policies. sentencing ques out The substantive tion either case is whether the former conviction be ing question ought that called into is one to be consid part history as a ered the criminal of the sentencing purposes. own our position courts have taken the Some state foreign employ part which chooses to as sentencing prepared every should be its scheme *8 638 constitutionality foreign support
ease to might any challenge against that as- alleged regardless character of the de- serted, of the difficulty relying proof, the hazards of fect, faulty upon ex memories. States rel Sa- See United 1957). (2d vini 250 F2d 349 Cir do Jackson, v. We necessary adopt at not believe that it is this time sweeping a rule. so administering purposes our
For own Ore- gon the courts of this state can dis- laws, recidivist foreign tinguish between conviction which the alleges that could be reached col- defects Oregon judgment it an one lateral attack if were alleges irregu- other which he some constitutional in larity grounds post- constitute which would not See, under 138.510 to 138.670. conviction relief OKS (1966). e.g., 414 317 v. 243 Or P2d Gladden, 406, Guse allegations prisoner’s to deter- now turn We peti- demurrer, mine warden’s whether, grounds for which this one or more relief tion states alleged recognize legally if sufficient as court would against conviction. recog is now counsel at the trial
A denial of courts as a constitutional de in state and federal nized and it render a conviction void, that will one fect long attack after in a collateral can be asserted Wainwright, final. v. become Gideon has conviction 2d 93 ALR 2d 9 L Ed 799, S Ct 83 372 US (1963). will invalidate A denial of counsel also 733 guilty plea, can be and this defect Gladden, Lawson v. attack. in a collateral asserted (1967); rel ex United States P2d 245 Or 1964). (2d F2d 303 LaVallee, 330 Cir Durocher question court is whether now before the alleged with each of counsel in connection a denial has *9 his five former convictions. of pris- convictions, his two Texas
In the ease of promises, alleges police brutality, threats, that oner against employed illegal interrogation were him plea petition guilty. of His also he entered a before in each of his Texas convic- reveals, however, attorney pleaded guilty with an at his side. tions he pleas guilty of seeks to avoid the effect of his He alleging inadequacy of counsel. his a
The of this state will not entertain fac courts inquiry pretrial foreign pros tual of a into the conduct guilty plea ecution when the record made reveals a Any questions, with the advice of counsel. meritorious pretrial irregularities have about could and would disposed functioning of if counsel at the time of guilty plea. allegation
An
of the ineffectiveness or inade
quacy
of
when tested
counsel,
demurrer in collateral
proceedings
allege
disloyalty,
state,
this
must
bad
improper
or
amounting
some other
faith,
conduct
ato
substantial denial
of
assistance
counsel. See
Benson v.
242
Gladden,
Or
(1965);
P2d 634
132, 140, 407
v.
(1965).
Abel,
State
465,
Or
We foregoing allegation a states substantial denial of proven, if would be such denial of counsel, and, would as render con Carnley viction Cochran, void. 369 US 82 S Ct (1962); 8 L Gladden, Ed 2d 70 Lawson v. 245 Or though (1967). Accordingly, 422 P2d even appear Texas convictions based have been guilty plea entered with the advice of the com counsel, plaint alleges denial counsel and there a substantial fore states a cause of action. The demurrer should have been overruled. present a variation
The Oklahoma problem of denial of al counsel. *10 leges of two Oklahoma he in each his that pleaded guilty he that without counsel without and was being alle of his to counsel. This advised ever ground valid for relief. Lawson v. gation states supra. Gladden, alleges prisoner with that connection also guilty plea he was further induced
one Oklahoma two-day exchange plead guilty police for a to the conjugal jail. allegation latter local This in the visit prisoner surplusage. regarded If the was as can op- an he also denied effective counsel, denied pretrial police objections present mis- to portunity pre- alleged of counsel, therefore, denial conduct. if to entitle fact sufficient, true, an assertion sents prisoner to relief. was also on conviction, Missouri In the alleges again prisoner that he en- guilty, plea being plea that he could advised without his tered attorney, in fact without that he was have against allegation likewise sufficient This counsel. prisoner alleges bar- also demurrer. The the warden’s police gaining and with other officials with allega- disregard plea. entering latter these his We They surplusage. improprieties as tender tions questions undoubtedly disposed been have that would they allegedly had occurred in the state where prisoner provided. was without counsel been Since and it is his for that reason conviction is bad counsel, necessary speculate upon actions the remedial might counsel taken. have by demurring complaint,
The warden, to the deny prisoner’s allegation does not he was denied counsel in one or more of his Oklahoma and availability Missouri convictions. The of counsel is a question of fact in the two Texas If convictions. prove allegations concerning can his his de any nial of counsel in former convictions, his present upon sentence is based or more one unconsti tutional convictions. necessarily
It follows that the demurrer should have overruled and the cause should have been proceed allowed to to a factual determination regarding the issues denial of counsel.
Reversed and remanded. concurring.
LUSK, J.,
I
I
concur. would add a word relative to the con-
(1)
tention that under ORS 168.015
and 168.075,
*11
right
invalidity
has waived his
to assert by failing
of the former convictions
to claim it at the
hearing
allegations
on the
of the habitual criminal in-
It
formation.
is said that because of the constitutional
they
these
defects in
convictions
have been “rendered
nugatory.”
(1)
The
words ORS 168.015
“or other-
nugatory”
properly
wise rendered
cannot be
construed
invalidity
include convictions the constitutional
of
to
prior
bringing
to
had not been determined
which
proceeding. If
of
criminal
this were so
the habitual
provisions
as
the waiver
of ORS 168.075 would,
then
applied
some
unconstitutional.
sec
eases,
question
of
code in
were enacted in 1961. It
tions
Supreme
that
of the
was not until 1963
Court
Wainwright,
v.
Under charged criminal convic- an habitual because as prior held to waived the would be have tion represented objection al- he was not counsel, that though the time of the could not have known at he proceedings that this consti- criminal habitual may cases arise in the future Similar tutional defect. yet rights involving undetermined as charged sup- persons It is to be with crime. legislature posed that accused intended have waived a constitutional be held to should anyone he nor else was neither the existence at the time. aware dissenting. J., C.
PERRY, strange interpreta- place majority seems to 168.015. tion OES this that the laws of state remembered
It must be increasing penalties felonious because first enacted 1927. Laws, were
643
Oregon
§
p
1930;
§
Code
432; 13-2801,
334, 1,
ch
1927,
was contained
time there
At that
§
OCLA.
26.2801,
“conviction.”
the. word
definition of
Act no
in the
placed upon
was
only requirement
the State
Thus the
competent juris-
by
prove
of a court
records
the
to
particular
conviction
former
defendant’s
the
diction
felony.
In 1927, in- and, therefore, not been discovered had fendants rights fringement had of federal upon Fourteenth imposed states via the the Amendment. Oregon passed legislature the
In when 1959, (ORS Oregon ch Laws 1959, Act, Post Conviction procedure provide 138.510-680), it was enacted by upon whereby process imposed these states due rights newly could federal constitutional discovered corpus. In to federal habeas resort had without many federal doubtful if constitu it was instances, jurisdictions in other convictions tional violations successfully corpus in habeas state attacked could be Murphy, proceedings. rel Dennis v. C.A. N.Y., ex U. S. 265 F2d 57. by Oregon passage Post of the Therefore, legislature evidently in- Act Conviction by major- (as provided decided now tended requirements response ity) wherein, forum being process, an crim- habitual one accused of due grounds challenge his on constitutional inal could sentence was his enhanced which Postconviction-Hearing Oregon Act,” “The See based. (1960), authored Jack Gr. L Rev 39 Or drafting R. members of Neil, and Carl Collins of the Act. committee change
In 1959, no made the act of 1927 defining prior might relative convictions which he determining considered as basis for a convicted felon’s status as habitual criminal. However, two years passage after the Post Conviction legislature, provided Act that:
“(1) sought The failure of to have appellate review of his or to conviction, have raised alleged petition in matters his at trial, his shall availability the affect relief under ORS * * * 138.550(1). 138.510to 138.680. ORS legislature the amended Habitual Criminal Act by defining upon which could be relied conviction enhancing penalty. in law to form a for basis ORS 138.550. 168.015(1)
ORS states: “ adjudication guilt an ‘Conviction’ means plea, finding pro or verdict criminal ceeding competent jurisdiction, ain court of but adjudication ‘conviction’ does not include expunged by pardon, has set aside reversed, nugatory” (Emphasis sup or otherwise rendered plied.) provided
and ORS 168.075 that: proof exception “Unless shows the of a * * * (1) former conviction under subsection exception of ORS the defendant waives the 168.015, hearing allega- failure to claim it at the on the tions of the information.” legisla- above, Prom the it is clear to me that the defining providing after ture, “conviction” and hearings, waiver if not raised in the recidivist deter- prior mined that all defenses to habitual proceedings criminal are to be tried in the court
645 felony” “principal was had. conviction wherein Certainly v. West after would Graham contend, no one (1912), Virginia, L 917, 56 ed S Ct 583, 32 US rely upon invalid convictions could the state comports penalties. with This criminal enhance process, requirements and a defendant due of federal prior challenge right convic- may these waive his the habitual failure to assert this tions “prin- proceedings wherein the in the court criminal Oyler felony” cipal Boles, conviction was had. L 446. ed2d 82 S Ct US majority 168.015, To avoid the effect of OKS apparently unclear there- and, holds that the statute is legislative intent was to foreclose fore, challenge only post-conviction a rec- from where his prior proceeding that dis- ord had been made in some aside,” closed that the conviction had been “set “expunged,” or “reversed.” is a word of contrast mean- The word “otherwise” * * * way
ing “in a different under manner; *14 Inter- different Third New circumstances,” Webster’s Dictionary; an- manner; national “in a in different ways,” Dictionary, way, in other Law other or Black’s “nugatory” simply Fourth Edition. The word means constraining vitality,” force or destitute “invalid, Dictionary, Law Fourth Edition. Black’s by legislature using It clear that therefore, is, distinguishing between “otherwise” was those word “expunged,” had a record disclosed acts which arising and those in or “set acts aside,” “reversed,” way or manner which voided the some other different prior judgment. argued concurring opin- in the
It would be as true, that under OKS 168.075if the habitual criminal’s ion, rights provisions had been waived rights when such were and statute unknown then might it not be held that that issue was
undiscovered, by a waiver under the insofar as foreclosed statute corpus applied. jurisdiction of federal habeas This just however, would be as valid contention, same yet regard New York statute to the 1964 as to be rights, not discovered federal constitutional because unconstitutional, the statute itself is but because of the process requirements of federal due that the state rights provide a forum which federal constitutional can be resolved. it well established there can no waiver
Also, right. envisaged by In an unknown situation opinion, post-conviction concurring proceedings provide if the state is to a forum would still lie rights. yet discovered federal constitutional present That the situation in this case. is not against petitioner informed as an habitual crim was hearing “thereafter on said information a inal, April was held on wherein admitted 8, 1964, allegations the truth of all the material of said infor previous (Emphasis on file.” mation of convictions represented supplied) petitioner at time was this and at this time it well known able counsel, prior that unconstitutional convictions could be at proceedings tacked in in both state and fed recidivist Virginia, supra. West eral courts. Graham v. Oyler supra, Boles, As stated US 451: 7 L ed2d any may we assume infirmities “Indeed, open collateral attack in the proceed- in the recidivist have been reached could ings, permits law so either because the state *15 requires.” (Emphasis supplied.) process due so
647 hearing petitioner’s recidivist Gideon the time of At Wainwright, L ed2d 335, 792, S Ct 9 372 US 83 v. history. past was ALR2d 733, 93 799, Gladden, 246 424 P2d 326, 240, v. Or In Schildan we stated: 241, procedures bypass state is “The deliberate corpus federal habeas test directed for the waiver Fay prisoners.
proceedings
v. Noia,
state
372
(1963).”
L9
ed2d 837
822,
83 Ct
391,
US
S
permits a collateral
It
is
ORS 168.075
clear,
Delaney
upon prior
“[i]n
and
attack
convictions,
P2d
cert.
372
308,
746,
Gladden,
306,
den.,
Or
applying
L
in
9 Ed2d
940,
970,
83 S Ct
ORS
945,
US
(2),
post-conviction
that
act
held
138.550
we
appeal
provide a
intended to
second
that
not
‘
principle
procedural
more
familiar
to this
“no
right may
than that a constitutional
be forfeited
Court
civil
failure to make
in
as well as
cases
criminal
timely
having
a tribunal
assertion of the
before
citing
jurisdiction
it”
Yakus
’,
to determine
v. United
L
64 S Ct
States, 1944,
414, 444,
321 US
Gladden,
Benson v.
242 Or
859.”
132, 139,
Ed
Certainly can one contend that the no hearing did court at the recidivist not have circuit pass jurisdiction infirmities of con- victions. petitioner alleges if because assumed,
Even it be indigent counsel was an without when he he guilty two pleaded Oklahoma that he could not waive these Missouri, and one rights in his recidivist trial, pleaded when was afforded counsel he he nevertheless, burglaries guilty two the state Texas. *16 stating appointed
While he was counsel in both petition Texas his cases, as to both these convictions states: “® * * attorney that said did not converse petitioner investigate
with or prepa- the facts for petitioner’s ration of as to the petitioner defense or advise meaning charge, of said what' elements comprised charge the or what acts amounted to being guilty any possible thereof or defense thereto plead guilty purpose having for the of jury peti- trial the merits; that at on the time plead guilty tioner eighteen as aforesaid he was years completed grade old and had the fourth of layman school and awas and not learned in the law.” passing, amusing
In petitioner it to note that allegation makes knowing the same meaning of not charge comprise of charge or what elements of burglary subsequent burglary even as to his three con- victions. allegation attorney that the did not “converse” simply attorney
with him means that did not opportunity exchange afford him an for a “free of charged views” as to the elements of the crime and possible his subsequently as set defenses, out paragraph. allegations charge
None of incompetency these question raise the peti- counsel, but sole of whether knowingly intelligently tioner waived his consti- right by jury. tutional to a trial This is not a waiver right pretrial of the to counsel or a waiver of incrimi- nating statements. This is a waiver of a made present in court and -with his counsel and a matter passed upon by judge be must the trial before plea may accepted. the courts to me that absurd It seems power arrogate to re-examine themselves should previously in the courts question decided fact a sister state. though my opinion, holds this court even In allegations in the lack of counsel petitioner’s waived were not and Oklahoma convictions Missouri proceedings, the two Texas convictions recidivist in the pleading petitioner’s therefore, valid and, were post-conviction relief. a cause fails state of the in this state convicted *17 dwelling provides burglary for in a which crime of period penitentiary imprisonment for a of not in the years. 164.230. more than 15 ORS provides: Act, the Habitual Criminal 168.085, ORS felony “(1) conviction of is former one Where by imprisonment a term not for the court, found longest pre- term otherwise than the more twice statute for the felony. by principal scribed felony “(2) two former convictions Where by imprisonment a term court, for found the are longest other- the term than three times not more felony.” principal prescribed by for the wise statute penitentiary petitioner was sentenced to the years. period The above OES statute, of 30 to fix a sentence authorizes the trial court 168.085, years petitioner concerned of 45 in as this insofar penitentiary. is no constitutional there Therefore, the statutory invalidity pronounced in the sentence or proceedings. original recidivist the always opinion jurisdic been of the the I had post-conviction grant relief was a court tion of by to: ORS 138.530 limited * * * (a) “(1) A substantial denial in the resulting petitioner’s proceedings or conviction, appellate petitioner’s rights in the review thereof, of under the Constitution of the United un- or States, Oregon, der the Constitution of the State of or and which denial both, rendered the conviction void. “(b) jurisdiction Lack the court to im- pose viction. judgment upon petitioner’s the rendered con-
(Emphasis supplied) “(c) Sentence in of, excess or otherwise not in accordance with, the sentence authorized law petitioner for the crime of which was convicted; unconstitutionality of such sentence. “(d) Unconstitutionality making of the statute criminal the acts for which was con- victed.” nothing permits
I
post-
find
in the Act which
granted
conviction court to review the discretion
sentencing
legislature
fixing
period
court
imprisonment.
v. Dixon,
State
238 Or
393 P2d
Montgomery,
State v.
204;
237 Or
For the above I reasons, dissent.