*1
49
rehearing
petition
Argued September
for
affirmed October
8, 1961
November
denied
v. BLOOR
OREGON
STATE OF
torney County, argued Corvallis, the cause respondent. and filed the brief for Before McAllister, Chief Justice, *2 Bossman, and Brand, Perry, Sloan, O’Connell, Goodwin Justices. J.
ROSSMAN, by appeal judg is an This the defendant from a ment which the circuit court December 14, upon plea guilty of his to an indictment which year charged rape daughter. him with the of his 13 old (ORS 163.220). by The indictment returned the County. grand jury judgment of Benton sen imprisonment defendant to tenced the the state penitentiary exceeding years. for a term not assignments presents of error.
The defendant two challenges ruling which denied his motion a The first plea guilty. The motion was based to set aside his arraignment ground upon “in of the de that the the neglected inform the and to failed the Court fendant, required right to counsel as ORS his defendant upon Article Section I, and 135.320, and ORS 135.310 assignment Oregon second Constitution.” erred when it charges court the that circuit error permit to with him “to motion defendant’s denied plea a therefor and substitute plea draw presented contentions guilty.” motion That shook” at the in a “state that attorney arraignment, the district that time of defendant) the commission denied (the he knew attorney un district alleged crime, guilty, plead and fairly persuaded pur in fact the defendant was innocent of ported crime. undergone pilgrimage has a considerable
This case previous of some of its narrative the courts, assignments episodes render is essential error understandable.
After the defendant’s he arrest told the sheriff speak attorney like to that he would district thereupon latter called him. The follow- testimony given by ing attorney, the district John not been contradicted: has Fenner, myself to Mr. “I introduced Bloor. I said I am Attorney you I am the District Fenner, John don’t you if to talk to me don’t want to. you to make a want statement. understand He something to the effect that God had said that — things spoken him he wanted to make and that right, said, effect. or words to that So ‘Well you And like to make statement?’ would *3 get pencil I ‘Well, I will ‘Yes.’ said, said, very paper.’ well.’ I write don’t ‘Well, And he said, make on a we can a statement said, ‘Well, I my you recording wish,’ and he said, at if office right.’ the conversa- extent of So that was the ‘All jail.” the tion at having place, brought above taken the sheriff attorney’s the to the district office where defendant ensuing questioning was record of the recorded. The questions and is in this ease. the answers exhibit pages. Bach and covers four It transcribed has been questions page signed defendant. No one transcription although accuracy de- by stating remember, that he does not does fendant, pages are an state- accurate four not concede conversation. ment of began pages,
According Mr. Fenner to the four by telling the interview the defendant that he was not required say anything and that he was entitled to attorney have an if he wished one. The defendant replied that he wished to make a statement attorney. he did not care for an quote We now from the transcribed statement designates letter Mr. Fenner with the “F”, (Mr. “B” sheriff with the and the letter Lilly) “L”. with the letter
“(F) your Then it is wish Mr. Bloor that at regarding to make a this time statement this matter connecting your daughter with and wife? say “(B) All I can is Iwhat said before. “(F) you say And what did before Mr. Bloor? “(B) A man that would do like that surely possessed devil. “(F) you And did have intercourse with * * * [your daughter] Mr. Bloor? “(B) I I Sir don’t know that. don’t know that. fooling yes, I as far remember with her but as that so. don’t know and I didn’t ever think
“(F) referring I am to sexual intercourse Mr. Bloor. “(B) That is what mean I didn’t sir, think really. I had ever * * * “(F) we have a Now, from statement ** *
[your daughter] Mr. Bloor. [she] Is child? truthful yes
“(B) sir she is. Oh, * * * [your “(F daughter] Now said that ) night you required of December 10th that intercourse, her sexual intercourse, *4 you jeep, right? is that “(B) If she said so sir it is truth. you “(F) Do remember it?
“(B) got I have some faint rememberance of fooling yes, got with her I have that. I have I don’t honest, but remember of. “(F) you long period Now do recall how * * *
you fooling [your daugh- have been with ter] ? “(B) just No I don’t remember. sir, like It anyway. thing
a dream the whole
[*] [*] [*] with “(F) * [*] Do * you [your daughter] remember going on down Alsea a week ago Wednesday, which would be December 10th, evening?
“(B) going. Yes I sir, remember “(F) you drinking night? Had “(B) Yes sir I had.
“(F) you How much did have to drink? “(B) quite I don’t it know but a bit I know that. “(F) possessed you And on what this occasion * * # [your
to have sexual intercourse daughter] ? “(B) got I sir, Oh don’t know. The devil has being to me. Lack of self control, right thing. the main side God is
“(F) Lilly you you Sheriff do have want Mr. to ask Bloor? “(L) you give picture us a Can’t little clearer you already? given
of this than us “(B) you anything I I will tell can from now going possibly I on I am to be can be. as honest you Anything and I ask know it will tell me help you. me That is the truth so God. you going “(L) do remember This last time to Alsea?
“(B) Yes sir do.
“(L) get groceries? To some “(B) going I do, Yes sir I remember to Alsea you telling I do remember of have been and what * * * fooling [my I about with me remember daughter], as far as but actual intercourse I don't remember that.
“(L) Had you [*] [*] drinking [*] evening? “(B) I had. I think Yes sir didn’t even about * * * they got it until come and it or realize [my bring daughter] and her back didn’t why out then when came out find she wife drinking me I like the dickens. told remembered my shop of stuff out in and I was I had bunch drinking I ever went to and I be- town, it before got up got I I some more after there. lieve you “(L) drinking? were What Everything. “(B)
^ you “(F) you got what did do? home Before you “(B) I told I fooled I remember, don’t yes, on I remember if we went her don’t with place highway or where from our down stopped, sir, I don’t remem- I don’t remember we though, I that. did remember I that we know ber. you you you got “(L) her when And to the house? back yes,
“(B) was with me. she Oh you you “(F) fooled with her said Now when you you with her? had sexual intercourse mean you
“(B) is an honest I this sir, told Well I don’t remember of that. I don’t remember fact, way, might with her have fooled of that. I don’t re- intercourse, ever actual far as but member that. * * * [your you daughter]
“(F) said Well did.
“(B) if she did it is Well . I, truth. ... “(F) anything Mr. Well Bloor there else you your say explana like to on would behalf, you say go tion or else would like on the record.
[*] [*] [*] “(F) you You understand that in record this voluntarily? made
“(B) voluntarily my part Yes, and if there *6 you is can tell that is truth I girl hope will do it. don’t care. I that that forgive and her mother and all of them me that regardless hope happens is all I of what to me. I’ll I have done it and I suffer, will suffer for it. “(F) being This is the end of a statement given by William D. Bloor in office of John Attorney, presence Fenner, District of John Lilly. day Fenner and Sheriff December, This is the 19th approximately 1958, and it now is 10:00 a.m.”
Immediately following the statement the defend- signature. appears ant’s It also on each the other pages. three contradicted,
The above statement not been has parts the defendant. When of its were read some to replied him he that he not recall whether could principal them made or not. His contention was that attorney persuaded plead guilty the district him to by telling save him it would embarrassment for family. daughter his and other members his recording mention of the conversation makes no any attorney statement the district kind, spoke upon that to sub- denies that he only ject. agreed one interview with that he had It is the defendant. day being two after the a or 23, 1958,
December attorney, defendant’s visit in the office of the district arraigned he was before the Fred Honorable Mc- Henry, judge County. of the Circuit Court for Benton complete pled guilty. portrayal He A of the defend- McHenry appearance Judge ant’s before is set forth Bloor P2d At Gladden, v. 227 Or 57. arraignment the time of the the defendant’s both father and older in the courtroom. The sister were shortly after father the defendant had called attorney. made statement the district latter had his According “in a the defendant was state father, him. he visited He added that his shock,” when son to me. I wanted to talk him “wouldn’t listen lawyer already and he he had bail and said about attorney and he fold him what talked to district to me at all.” do and he wouldn’t listen psychiatric January examina- after 22, 1959, report completed of it had been had tion de- for Benton sent to the Circuit McHenry Judge again before stood fendant —this virtually one This occasion time sentence. plea month after *7 again His in the court- guilty. were and sister father defendant sev- had called The father room. hospital state he was in the while eral times upon him at least once had called sister defendant’s psychiatrist’s observe that We in that institution. referring states: defendant, report, indulgence in excessive include habits “His * * * readily attempting admits He alcohol daughter 13-year but he old his intercourse achieving actually pene rememberance denies * * * intelligence. of normal isHe tration. * * *" by Judge asked had defendant After McHenry whether he wished to make a statement he replied:
“Judge, get I everything straightened want to daughter out. [the have gave another her it] but name, we omit and there’s been a few times I have fooled with her.” Judge seemingly When the hear didn’t all of the de- fendant’s repetition words and asked for a the de- fendant declared: daughter
“I [we said, another omit her name], and a few times I have fooled with her, and I already told things the sheriff some other up just that come over this up now before come here.” January Judge McHenry judg- 1959, entered a guilty ment of and -sentenced the defendant to an imprisonment twenty years peniten- in the state tiary.
Twenty months after the defendant had been com penitentiary mitted post he instituted convic proceedings tion in the Circuit Court for Marion County challenged validity judgment of the which the Circuit particularly years. had entered, the sentence of 20 His whom we have sister, mentioned, retained post proceeding for him. In counsel conviction through the defendant, counsel mentioned, right (a) he had been contended denied his legal representation provided as the Sixth and Amendments of the United States Fourteenth Consti deprived right (b) he had been to coun tution, Oregon provided § Article I sel as granted (c) he was not counsel Constitution, available ORS 135.310 and is rendered latter understandingly (d) did not volun 135.320, *8 tarily (e) judge right the trial waive counsel, explain person did to Mm without funds not that may public expense, (f) at the clerk counsel County comply for Benton failed the Circuit Court through by serving regis upon Mm with ORS 137.113 report by copy the made mail a certified of the tered they psychiatrist. to the issues are material Since not charge made of the we other elements before us omit County post by convic Marion in the proceeding. for Marion tion Circuit by charges defendant lacked ail made that found copy of the except averred one which merit report the defendant psychiatrist’s not furnished upon Based imposition prior sentence. twenty years was finding alone sentence vacated. peni was transferred from the endant
When the def County jail resentencing tentiary Judge McHenry in the sum $10,000 fixed his bail signed His the bond. father defendant’s and the justification he worth above $20,000 showed that exempt property. debts After released per- he mentioned moved that bail bond he be plea guilty Ms mitted to withdraw enter one guilty. (1) He was not not contended he McHenry Judge arraign- at the time of advised employ if to lack of funds could not ment that due county attorney expense and would bear the charged (2) crime and that he was Following filing a trial. afforded be should hearings in the were conducted extensive the motion testimony. gave witnesses several course testimony, than 200 transcribed, covers more accompanied until exhibits. pages *9 testimony The mentioned covered a wide range subjects. among of It other showed, details, years age that the defendant was 34 of when he is said to have committed the crime with which this case youth gone is concerned. As a he school until grade (¡second year high he in the tenth school). average intelligence. occupa- He was of prior tion he which followed to his arrest was that “gypo” logger. occupa- of a In connection with his expensive tion had an he tractor and when he worked with it he received an hour. $8 supra,
Bloor v. Gladden, this court’s decision upon appeal judgment the defendant’s from order the by the Circuit Court Marion in post proceeding. reading the defendant’s conviction A gave of it will show that that this court, case, extensive consideration to the claim defendant’s that right Every he was denied to counsel. con contention cerning right to counsel the which defendant has now placed before us was submitted in that case also. rejected decision written Mr. Justice Sloan the repre contentions. The decision was unanimous sented the all views of seven members of court. the applicable all the It held that of the demands of fully provisions statutes and constitutional had been Nothing observed. was denied the defendant. We assign remain satisfied with that decision. The first ment of without merit. error is proceed assignment now to the second of error.
We Judge McHenry, contends that the The defendant judges all which trial the discretion with exercise of requests permission an when accused are invested granted guilty, plea should withdraw permission. commend- counsel, The defendant’s agree at outset that states: “We frankness, able there must be abuse of discretion by the trial court. An examination of the facts and circumstances i's necessary.” We have read the o-f the transcript extensive which testimony counsel submitted trial court. Although defendant, the hear- during ing his motion sought privilege stated withdrawing plea repeatedly he in a at time state shock arraign- that he was then confused and was unable to ment, contention said think he makes no clearly, kind to the trial at the time of judge The latter occurred sentencing. or arraignment Preceding days arraignment. pages after *10 which the defendant the answers quote this opinion in his visit attorney during to the district gave a state do not suggest answers The latter’s office. on the inability or an of confusion a condition shock, The dis- for himself. to think part sug- that he nothing observed swore attorney trict noticed some nervous- shock, but a state of gesting of the that at the time mentioned have ness. We when the sentence later a month and arraignment and sister were father the defendant’s was imposed that made they not claim They do the courtroom. in that judge the trial to indicate to effort any condi- or anomalous unnatural in an mentions psychiatrist made report tion. witness character and abnormal nothing unusual. noticed he if asked even he states: report His physical man in good a young Bloor “Mr. laboratory neurological, physical, Routine
health. sig- no reveal examinations roentgenological and normal intelli- is of He abnormalities. nificant ability information a fund shows gence intelli- his keeping is in which comprehend background. gence and He shows no educational grasp surroundings, in his of his abnormalities any thought nor does he demonstrate defect subject temporary processes or content. He is contempla- depression as a result his reactive tion consequences he However, of his acts. * * *” spontaneously. from these has recovered psychiatrist several interviewed the defendant days sentencing occur until some times. The did not report had written. after this very Surely judge, paid atten- the trial who close questioning of the would not witnesses, tion to the anything concerning proceeded he noticed inability upon indicated an his defendant which part for himself. to look out excerpts taken from the recalled from
It will be preceding pages quoted of this are record, many opinion, defendant made statements guilt. suggestive strongly Those statements his voluntarily. example, freely For made were that he had “fooled” with information volunteered the daughter named the indict to the one in addition he did so several times. His He swore ment. concerning iniquitous only conduct doubt penetration. degree After part was the have been committed the alleged is said crime *11 tramp through long went on home, left daily (so swore) got his knees down the woods, days home and sent later returned seven and about already mentioned the inci have We the sheriff. In arrest. meantime, after occurred dents jury grand indictment, returned its however, daughter testimony based nothing are aware of in the examining physician. We justify the defend- a conclusion that can record and as voluntarily ant did not enter Ms of plea recogni- the result of both remorse a deliberate tion guilt. believing are aware of no reason for
We trial should have judge permitted find no merit withdraw We guilty. Ms plea of error. assignment second Affirmed.
ON REHEARING *12 63 petition. Ringo for the Corvallis, and Walton, J. ROSSMAN, rehearing upon the moves for
The defendant petition: following ground expressed in his County, Oregon, of Benton “The Court Circuit jurisdiction 11, cause between October had no during period 21, which 1960, 1961, June of the Circuit Court Bloor v. Gladden appeal and the order County, Oregon. No. was on 49158, Marion Oregon Supreme Court County, Oregon, in of Benton Court Circuit 14, dated December Bloor, 18036, 1960, v. No. State and the order plea denying a motion to set aside the 30, are void 1960, dated November setting the order aside effect in that are of no by upon acted until the Circuit could not be the sentence appeal in Bloor County) (Marion heard and v. Gladden determined.” just quoted the support de- the contention
In P2d 294, 228 Or 365 Jackson, 371, v. cites fendant State day upon the same State decided this court Which case was in the Jackson Bloor. The v. May August jury by grand 1960. 18, On indicted the indictment on the moved to dismiss Jackson brought within ground to trial he had not been by required 134.120. Au ORS time as a reasonable gust it was heard; was de motion to dismiss 26 his September 1. The defend nied an order appeal promptly from the order filed notice ant September September circuit court tried 1. charge indictment and stated Jackson guilty. Upon appeal to this court the de him found argued judgment guilt void fendant pend trial was conducted while there because the ing appeal from the order which de in this court the indictment. Since nied his motion dismiss ORS *13 prescribes appeal (1) 19.033 that “When the notice provided has been served and filed as in ORS 19.023 jurisdiction Supreme the Court shall 19.029, by opinion Mr. 'the in an written cause,” court, this appeal held that after the notice of had Justice Lusk, duly given jurisdiction in over the cause was try this and the circuit court could not the case. court, supra, v. Jackson, It will be noticed that State juris- appeal held which we transferred the notice from the circuit court to this diction over cause very given in that case itself. The counter- court was by represented part the case situation is us. The invites defendant, Bloor, now before us to appeal by that an taken him an order hold from en- County by for tered the Circuit Court Marion Bloor jurisdiction terminated v. Gladden of the Circuit County for Benton over v. Bloor. Court State grand inception when the v. Bloor had its State County charge jury Bloor indicted of Benton days rape. five after the return 1958, December arraigned the defendant was indictment, January guilty. pro- plead 22, 1959, sentence was penitentiary. and the nounced May plaintiff, pro- as instituted 1960, Bloor, ceeding Bloor v. Gladden which entitled is mentioned quotation. pro- in the above The defendant in that ceeding Oregon is the Warden State Peniten- tiary. proceeding was instituted in the Circuit County provisions for Marion under the of ORS through (Post Hearing Act) 138.680 138.510 Conviction post conviction relief. for Bloor, relief which as plaintiff sought fully reported case, in that in State Upon trial of Bloor v. Bloor and Bloor v. Gladden. given Bloor was not all of the relief which v. Gladden by thereupon appealed sought he to this court appeal filed He now notice of October claims 11, 1960. appeal jurisdiction that that notice of ended the County any proceed the Circuit Court Benton further with v. Bloor; State he claims that is, jurisdiction of the court was Bloor terminated until v. Gladden was decided. developments in now return to the v.
We State by grand Bloor. The indictment in was returned it jury County, we December said, 17, 1958. plead guilty. December After hospital psychiatric been sent the state for the ex- required amination 137.112 ORS and had been re- turned to Benton he was sentenced to a term Oregon penitentiary. in the November 30, 1960, *14 (Benton defendant filed a motion in State v. Bloor sought County) plea in Which he relief from his guilty permission plead guilty. grounds and not are of his motion set forth in Bloor. State v. plaintiff Bloor,
It will be remembered that in gave appeal Bloor v. Gladden, notice October 11, judgment proceeding in from the 1960, appeal brought notice of he claims that his jurisdiction a halt the of the circuit court in State v. plea guilty Bloor. His motion to vacate his in State Bloor not filed v. was until November one 30, month days appeal after and nineteen notice of given. It is under those circumstances that Bloor argues County now the Circuit Court for (in Bloor) jurisdiction v. “had no State of the cause 11, 1960, 21, between October June which is during period which Bloor v. in Gladden the Cir- County, Oregon, cuit Court Marion No. 49158, was appeal Supreme Court.” County Before the Circuit for Benton Court denied plea guilty permit the motions to vacate the plead Bloor to it conducted an extensive hearing. hearing The nature of the is set forth in purposes completeness v. Bloor. State For the we County, upon add that the Circuit Court for Benton receipt of the order entered the Circuit Court for Marion which held that since Bloor was not given copy psychiatrist’s report the sentence pronounced January 1959,was vacated the invalid, pronounced sentence and a new one. However, before appealed it had done Bloor had so Bloor v. Gladden. The above are the facts. We believe that it is obvi given appeal ous that notice of in Bloor v. Gladden jurisdiction proceed did not affect the court to v. Bloor. State The two were different cases. 19.033(1), quoted v. Jackson, ORS State supra, states: appeal has “When notice of been served and provided in 19.023 19.029,
filed as ORS the Su jurisdiction preme but shall have the cause, * * *." Plainly “the cause” mean the cause Which the words given appeal and not some other the notice of cause. rehearing petition for a is denied.