459 P.2d 448 | Or. Ct. App. | 1969
AFFIRMED. In 1950 the petitioner pleaded guilty to the crime of second degree murder. This is a proceeding for post-conviction relief, wherein he contends that his confession and plea of guilty were not voluntarily made. The post-conviction court held a hearing and denied the petition. Petitioner claims error in the court's findings of voluntariness.
On August 15, 1950, petitioner was taken into custody by two Multnomah County deputy sheriffs. Upon his arrival at the Multnomah County Courthouse he was immediately interrogated about the killing of one Howard Kingsland. The questioning continued until late afternoon of August 17, with the petitioner being *171 given time out to sleep, to eat meals, and to consult with a Catholic priest. Several persons, perhaps as many as twelve, took part in the interrogation. The first time petitioner saw an attorney was on August 17, after he had confessed to the killing.
The trial court in the instant case was faced with direct conflicts of testimony. Petitioner claims that during the course of his interrogation he asked Howard Kelly, Captain of the Detective Division of the Multnomah County Sheriff's Department, for an attorney and for a doctor. He said he was hit on the head and kidneys four or five times by Officer Kelly's bare hand. Kelly testified, and denied that any request for a doctor or for an attorney was made to him. He also denied striking the petitioner. There were no bruises or other marks on Endsley's head or body. When he was taken to a doctor, he did not complain that he had been struck. The witnesses agree that petitioner asked Kelly for permission to go see a priest, and Kelly arranged for him to do so.
Petitioner testified that he told all three of his court-appointed attorneys that he was slapped around while being interrogated, that he was denied an attorney and that he was denied a doctor until after he confessed. He further testified that all three attorneys, his mother and the priest advised him to enter a plea of guilty to a charge of second degree murder.
Although petitioner claims that Officer Kelly urged him to enter a plea of guilty, he denied that he pleaded guilty because the officer told him to. He further testified that his guilty plea was not based upon his attorney's advice but upon his mother's advice. He said that he pleaded guilty to second degree murder because he was afraid of the gas chamber if *172 convicted of first degree murder. His last attorney indicated to him that a plea of guilty to a charge of second degree murder would be a compromise plea.
Petitioner here first consulted with an attorney on August 17, 1950. That attorney was later appointed to represent him. He was indicted on the 29th day of September. He was arraigned on October 3. He appeared in court with his two court-appointed attorneys on October 13. At that time he entered a plea of not guilty of the crime of first degree murder. On November 16 his two court-appointed attorneys resigned. His third attorney was appointed on November 24. That attorney saw petitioner almost daily. On December 5, 1950, petitioner, accompanied by his attorney, appeared in court and entered a plea of guilty to the charge of second degree murder. No challenge was made to the competence of counsel, and the post-conviction court made a finding that counsel was competent.
Petitioner first contested the validity of his conviction in 1956, when he filed a petition for a Writ of Error Coram Nobis in the circuit court for Multnomah County. The court denied the writ, and on appeal the Oregon Supreme Court held that an order denying a petition for a Writ of Error Coram Nobis was not an appealable order. State v. Endsley,
Richardson v. Williard, supra, involved a claim by Richardson that he had failed to appeal his conviction, based upon a guilty plea, because he was ignorant of his right to appeal. At page 378 the court said:
"* * * Whether or not defendant knew the confession was admissible was irrelevant because the plea of guilty with the advice of counsel was a judicial admission of all the material allegations of the indictment in a most indisputable form * * *."
We agree with the United States District Court thatRichardson does not preclude relief in every case, but we are convinced that this defendant has not made a case requiring that he be set free.
The post-conviction court resolved the conflicting evidence against Endsley, and found affirmatively that he failed to prove his confession was in fact coerced, and further found that petitioner's plea of guilty was freely and voluntarily entered and was not the result of nor tainted by the prior confession. We are not authorized to retry disputed questions of fact in post-conviction cases where there is evidence to support *174
the trial court's findings. In Alcorn v. Gladden,
Boykin v. Alabama, 37 USLW 4474 (June 2, 1969),"* * * These findings of the trial court on the issues of fact are conclusive. ORS
138.650 provides that the scope of our review in post-conviction proceedings is 'the same as that provided by law for appeals in criminal actions.' ORS138.220 provides that in criminal actions 'the judgment or order appealed from can be reviewed only as to questions of law appearing upon the record' * * *."
Boykin illustrates the necessity for a trial court *175
to make careful inquiry into the knowledge and state of mind of an accused person who pleads guilty. The case does not specify precise rules of procedure for state trial courts to follow, but does require that a court ascertain whether the accused is aware of his constitutional rights and whether he knowingly waives those rights. To the extent that this case may be said to require more careful attention to procedures in state courts, it would appear that Boykin is not retroactive. InMcCarthy v. United States,
"* * * First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is *176 entered of the factors relevant to this voluntariness determination * * *."
In Halliday v. United States,
There was evidence to support the trial court findings in this case.
The judgment is affirmed.
"PLEAS
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
"As amended Feb. 28, 1966, eff. July 1, 1966." *177