*1 771 25, August Argued reversed submitted 4, denied December remanded October reconsideration petition for review allowed December OREGON, STATE OF Respondent, EVANS, ROBERT JOSEPH Appellant. (No. 16668) 79-9-177, CA Portland, Roberson, James J. the cause and submitted the brief for appellant. General, Attorney
John C. Bradley, Assistant *2 Salem, brief On the respondent. cause for General, R. Brown, M. John Attorney were James McCulloch, Jr., General, Gary, F. Solicitor William Green, General, Karen H. Assist- Deputy Solicitor and General, Attorney ant Salem. Gillette, and Roberts Presiding Judge,
Before Campbell, Judges.
GILLETTE, P. J.
GILLETTE, P. J. The defendant pled guilty to the crime of prostitution. 167.007. He appeals, now contend ing that the trial court erred in his accepting guilty plea because the court failed to advise him of all of the potential consequences and conviction. agree and reverse.1 as provides follows:
"(1) The court accept guilty shall not no contest to a felony charge or other on which the defendant appears person addressing without first the defendant personally determining charge. understands the nature of the
"(2) The court shall defendant: "(a) by That guilty or no contest right: waives the "(A) To trial jury;
"(B) confrontation; Of "(C) Against self-incrimination. "(b) Of the possible maximum sentence on the charge, including the maximum sentence *3 from consecutive sentences.
"(c) When the charged offense is one for which a different or penalty additional is authorized reason of the fact may that the adjudg- defendant dangerous offender, ed a may that this fact be estab- lished action, after a present in the thereby subjecting the defendant to different or additional penalty. "(d) That the is not a citizen the if conviction of result, United States may a crime under of States, the laws the United deportation, exclusion of admission to the United States or denial
from of ” naturalization. (Emphasis supplied.)
It is undisputed the trial court did not give any wanning which would comply with the terms 135.385(2)(d). of ORS
The state’s sole argument is that this alleged error is not cognizable on direct appeal. The state relies on 138.050, which limits the available 1 disposition Our of this issue means that dowe not reach the defend- assignments ant’s other of error. 774 for a and subse grounds appeal following guilty plea "* * * conviction to whether
quent question excessive, has been im cruel or unusual punishment * * *”2 posed. Reichert,
However,
App
39 or
State v.
(1979),
dealt with a factual
which
here,3
held that
situation similar
to that
we
presented
*
"* *
did
where
preclude
ORS 138.050
not
our review
because,
seeks a
his 'conviction’
reversal of
law,
and
guilty plea
as a matter of
there has been no
* * *”
that,
record is
no conviction.
We said
when the
hearing
required,
and no
is
complete
evidentiary
the effect
when the
is
a
one as to
question
solely
legal
man
guilty plea
contrary
statutory
of a
accepted
"* * *
date,
is
be attacked on
may
voidable and
* * *”
This is such a
direct
at 908.
appeal.
App
solely
legal
case. The record is clear and the issue is
may
one. The defendant
attack the
in this case on
appeal.
direct
true,
out, that
this
It is
as the state points
has
held
previously
specifically
court
be set
claim that
should
guilty plea
his
provides:
may
pleaded guilty
"A
contest
take an
defendant who has
or no
judgment
imposes
appeal
a sentence that
from a
on conviction where it
cruel,
background
light
is
unusual or excessive in
of the nature and
If the
of the offense.
the offender
the facts
circumstances
court,
judgment
appeal
is in
or the district
of conviction
the circuit court
justice
Appeals; if it is in the
shall be taken to the Court of
court,
city
appeal
peace
municipal
court or
recorder’s
court or
county in
such court is
shall be taken to the circuit court of the
located. On
question
which
only
appeal,
appellate
such
shall
consider the
court
excessive,
punishment
has been
whether an
cruel or unusual
punishment
judgment
appellate
imposed.
If in the
court
excessive,
cruel,
imposed
it
direct the court from
unusual or
shall
i;he appeal
impose
punishment
should be
is taken to
which
administered.”
Reichert,
accepted
supra,
the defendant’s
In State v.
the trial court had
day
guilty plea
arraignment
the defendant was
entered on the
when
*4
by
represented
the terms
counsel. The
of the
contravened
135.380(2),
provides:
of ORS
may plead guilty
on the
"A
or no contest
defendant with counsel
day
arraignment
any
without
A defendant
or
time thereafter.
felony
plead guilty
to a
on
no contest
shall not be allowed to
counsel
day
arraignment.”
advise
aside on the
that the trial court failed to
ground
not,
virtue of
him of a
could
consequence
138.050,
on direct
State v.
appeal.
be considered
(1970). However,
Ferren,
3 Or
Having may determined that we issue, we hold that the trial court erred in accepting the defendant’s plea informing without the defendant outlined in ORS potential consequences 135.385(2)(d). mandatory. The statute is clear and Before a is is to guilty plea the court accepted, the defendant of plea. results of the This the trial court failed to do. that,
It might while the trial court erred infor- giving requisite the defendant mation, the error is not reversible. The record case does not present suggest that Therefore, alien. it the trial might be contended court did not have to the information give defendant 135.385(2)(d), outlined in ORS or that the failure to give defendant not harmful. information was both of these reject rationales. first,
Taking the last proposition is, noted, If mandatory. as we have clear and a convic- tion, providing based on a taken without guilty plea 135.385(2), the information set at in ORS is not revers- ible, then that of the statute is not enforce- provision admonition and the to trial empty able statute is an judges. contention, the unambi-
Returning to the first 135.385(2)(d) indicates guous language of ORS *5 defendants, information is to be to all given the if Even to who are to be aliens. just not those known explica the the were language ambiguous, requiring legislative history of demonstrates history, tion that the the it said: that meant what legislature precisely In given plead guilty.4 information must be to all who case, the defend given this the information not to was accepting It the erred in ant. follows that trial court of guilty. tow- a recognize ruling our creates that substance, as— ering triumph of form over inasmuch for all that on the record —this appears case did warning an alien and the lack in this not of a However, in its wisdom harm him. legislature its directed this whatever warning given, has that be limited efficacity may be.
Reversed remanded.
CAMPBELL, J., dissenting. I dissent. The has not shown by the prejudiced is in an alien he fact and therefore court’s failure to him of the trial of guilty required results a as 135.385(2)(d). The the literal concedes that majority on duty reading mandatory ORS 135.385 to a place reaches trial to inform defendants court non-alien in- literal absurd result When the an this case. produces statute terpretation language must be the statute unreasonable result absurd State so that it is and workable. construed reasonable (1974). I would 204, Irving, court. affirm trial 135.385(2)(d) in committee The bill became ORS was amended given clarify legislature’s to all intent the information many plead guilty. aliens The reasoned that who committees defendants themselves, identify unwilling who most to so and that those would be might apt pleading guilty to receive before be least needed information judicial problems adminis- it. The committees also concluded that fewer routinely given to all defend- would if the tration result information were Minutes, guilty on plea. Senate Committee ants before 16-17, 20,1979, 9-10, Judiciary, February Ex. E at at March 18, 1979, F; Minutes, Judiciary Committee, April at 21-22. House