*1 24, April in banc Argued resubmitted October 30, April and remanded reversed OREGON, Respondent, STATE OF
v. REICHERT, Appellant. PHILLIP GEORGE 11249) (No. 104,937, CA P2d 1298 Defender, Public Smythe, Deputy A. Stephanie her Salem, for With appellant. the cause argued Defender, Salem. Babcock, D. Public Gary brief was General, Attorney Assistant Denney, H. Thomas the brief On respondent. Salem, the cause argued Redden, General, were James A. Attorney Walter L. Barrie, General, Parker, Solicitor A. Gregory General, Assistant Salem. Attorney BUTTLER, J.
BUTTLER, J. appeals escape
Defendant his conviction of his based entered on degree upon second arraigned repre- he and was not day the same was reverse. sented counsel. We waived his knowingly that defendant Assuming at of the court’s arraignment, to counsel the time right arraign- his day acceptance 135.380(2), of ORS was in clear violation ment provides: or no plead guilty
"A defendant counsel with day arraignment time there- any contest on A al- after. defendant without counsel shall not be plead guilty felony or no contest on the lowed arraignment.” day of Com- Law Revision Commission’s
The Criminal to ORS 135.380 states: mentary try to is to of the section purpose "The main handling of expeditious for the efficient and provide courts, protecting rights by the *3 while pleas stage’ of the during a defendant 'critical individual him. against criminal "‡ [*] (2) position to ABA the
"Subsection subscribes effectively waived if the defendant that even counsel, hurried should not be he nonetheless sufficient plea process without through guilty the of Commentary the to consider his decision.” time to (1972), Oregon Procedure Code Criminal Proposed 154-55. § 260 at error, the
The state’s
contention is that
principal
and in a sub
appeal,
is not reachable on
any,
is,
that
if it
the error
sidiary argument
contends
even
is
the
Taking
subsidiary
argument
not reversible.
first,
is
A
mandatory.
guilty plea
the statute
and
clear
the day
from a
without counsel on
of
taken
defendant
of
If a
is the
no
convic
arraignment
equivalent
plea.
reversible,
on such
then
tion based
a
not
of
is not
the statute
enforceable.
provision
the
With respect
to
appealability,
state relies on
138.050,1
ORS
grounds
to
relating
from a
appeal
of
plea
guilty,
permits
the appellate court
to
consider
whether an
cruel or unusual
Here,
sentence has been imposed.
however, defendant
seeks a reversal of his "convic
because,
tion”
as a matter of
there has been no
guilty plea and no conviction. In DeBolt v.
19 Or
Cupp,
(1974),
The record here is no complete; evidentiary hearing is required, and the one solely legal as the effect guilty of a plea accepted to the contrary 135.380(2). mandate of ORS We hold that because the court had no under authority the statute to accept did, at the plea time is voidable and plea may be attacked on direct jur court had matter, isdiction of subject both the defendant and the jurisdictional. so the defect is not Both the are conviction on the record and the defendant is in prison.
The dissent suggests defendant’s something other than a direct appeal, but does not tell us what is. That is understandable because provides: 138.050 may take an "A who has or no contest imposes appeal on conviction where it a sentence cruel, light background of of the nature and unusual or excessive If the the facts and circumstances of the offense.
the offender or court, in the circuit court or the district of conviction is justice Appeals; if it is in the shall be taken to the Court court, city peace municipal court or recorder’s county court of the in which such court shall be taken to circuit *4 only appeal, appellate court shall consider located. On such excessive, punishment has been whether an cruel or unusual appellate punishment imposed. judgment If in of the court the cruel, excessive, imposed it shall direct the court from unusual or impose punishment should be is taken to which which the administered.”
[908] jurisdictional constitutional, is neither nor defect so Hearing Act the Post-Conviction is not available.2 challenging act Since that exclusive "for proceedings the lawfulness of such or the (ORS 138.540(1)),3 upon ques which it based” remedy” tionable what "other is.
Accordingly, may the error be considered on direct reversed, Defendant’s conviction is and the case for further remanded not inconsis- opinion. tent with this
Reversed and remanded. dissenting.
TANZER, J., majority jurisdiction finds because it wants it. jurisdiction, The sole however, source of our is statuto- ry. judicial authority It is not whim. We have no to act beyond statutory jurisdiction. our
Appellate jurisdiction regulated in this case ORS unambiguous clear and provides: 138.050, terms "A defendant who has
take an on conviction where cruel, imposes sentence that is unusual or exces- light sive in of the background nature and of the offender or the facts circumstances of the * * * On appeal, offense. such the appellate court shall consider the whether an exces- sive, or punishment cruel unusual imposed. has been If in appellate court the punish- cruel, ment is or unusual it shall 135.530(1) provides: ORS allowed, "If the or motion set aside dismiss is the court shall defendant, custody, discharged or, order be if in if therefrom released, agreement he discharged has been that his release be and his security deposit provided by be refunded as unless court allows grand jury.” the case refiled resubmitted to same or another corpus illegality Habeas would be available the assertion were that the "upon grounds of the judgment other restraint were than the unlawfulness of such * * 138.540(2). proceedings upon which or the it is based added.) (Emphasis *5 the appeal impose is taken to court from which the be administered.” punishment should majority This The does not is such an the trial court over the case or jurisdiction and the exist. guilty defendant. The voidable, void. Conse- they but are not They may reach and for us to to ORS 138.050 controls quently, jurisdiction. is to exceed our appeal the error on majority is contained in one reasoning The sentence, and one cor- one irrelevant sentence wrong to us wrong purports The sentence tell rect sentence. based why appeal this case is not an a guilty plea: on "** * * Here, however, defendant seeks a reversal law, because, a has as matter of there
his 'conviction’ *” * * and no conviction. guilty plea been no * * * ("as no void, is a matter of law If the conviction conviction,”) is then the and no not direct for the reason corpus,1 appeal simple habeas nothing there is that if there is "no conviction” Moreover, if, from. as the majority to appeal has holds, by a "defendant who this not an a from on conviction” 138.050, failed to majority then the subject to ORS it is. tell us what else is:
The irrelevant sentence "* * * App 19 Or In Debolt v. Cupp, (1974), assumed, deciding, without P2d 601 we sentencing purely legal issue is a procedural when a 34.610(1) (3) provides: corpus] appears [to writ of habeas "If return process any custody by prisoner of an order or civil in virtue constituted, judicial by legally or issued an officer the course him, prisoner shall be authorized such before following discharged only cases exists: if one of "(1) exceeded, jurisdiction of the court or officer has been The matter, place, person. sum or either as required by "(3) [*] The order * * law, rendering [*] process the same is defective in some void.” matter of substance one, it, legal and the record is sufficient to raise issue be raised either on or in a post- proceeding.” conviction dicta
Citing Cupp from DeBolt v. make vasty major- ity resemble an opinion opinion, authoritative but does expand not ORS 138.050. correct majority’s sentence is:
"The here complete; evidentiary record no hear solely legal and one ing required, as to the plea accepted contrary effect of *6 * * *” ORS 135.380(2). added.) mandate (Emphasis The glaring, indisputable error is that the "effect of guilty plea” is different than "the question of whether an cruel unusual punishment has been to which imposed” ORS 138.050 specifically limits our jurisdiction.
I in join the majority’s desire to reach the merits because an has obviously error jur- occurred. Had we isdiction, I would vote with the majority, but we do not. greater error, however, is for a statutorily created court to role assume the of rulers by assuming jurisdiction by fiat where legislature has expressly limited it. This is not to say neces- sarily that, so, no remedy — Indeed, not it. it is likely this matter would have long been since resolved had there been motion prior trial instead of or to—and it seems days automatic these —an
Schwab, Gillette, Chief Judge, join in Judgé, this dissent.