Bloor v. Gladden

• Decision Date: 21 June 1961
• Citation: 227 Or. 600,363 P.2d 57
• Parties: William D. BLOOR, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 57

363 P.2d 57

227 Or. 600

William D. BLOOR, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 5, 1961.

Decided June 21, 1961.

James W. Walton, Corvallis, argued the cause for appellant. With him on the briefs were Ringo & Walton, Corvallis.

Harold W. Adams, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

SLOAN, Justice.

A post-conviction proceeding. Plaintiff's petition asserted that he was confined in the penitentiary in violation of constitutional rights. The trial court found that plaintiff had failed to prove all of the allegations of his petition but allowed it in part. Plaintiff appeals from the failure of the trial court to award the full relief prayed for.

On December 17, 1958, plaintiff was indicted by a grand jury of Benton county. He was charged with the rape of his 13-year-old daughter. On December 22, 1958, plaintiff was brought before the circuit court of that county and entered a plea of guilty. He did not have an attorney nor was one appointed for him. After he entered the plea of guilty the court ordered that he be sent to the state hospital for examination as provided by ORS 137.112 et seq.

Plaintiff was in the state hospital for about thirty days undergoing examination. He was then returned to Benton county and again brought before the court. The court advised plaintiff of a part of the contents of the report of the court by the psychiatrist at the state hospital but plaintiff was not furnished a copy of this report. Plaintiff was sentenced to twenty years. The maximum penalty available was life imprisonment.

In this proceeding plaintiff claims that he was in a state of emotional shock and mental confusion at the time he entered the plea of guilty. He charges that he did not knowingly waive his right to counsel; that his plea of guilty was, therefore, void and the judgment entered thereon should be set aside; that he should be given the opportunity to stand trial. His petition also alleged violation of rights because of the failure to serve him with a copy of the report of the state hospital. The trial court in this case sustained that contention and ordered plaintiff remanded to Benton county for resentence. As before stated, the trial court found that plaintiff had not proven his other allegations.

At the time plaintiff was arraigned in the circuit court for Benton county there was the following exchange between plaintiff and the court:

'The Court: It's the duty of the court to inform you that if this is not your true name, it would be your duty to disclose your true name. Otherwise you'll be proceeded against under the name of William D. Bloor.

'It's the duty of the court next to inform you that you are entitled to a lawyer. You want a lawyer to represent you?

'Mr. Bloor: No, sir.

'The Court: You understand now you are entitled to a lawyer, if you want one.

'Mr. Bloor: No, sir.

'The Court: You don't care for a lawyer?

'Mr. Bloor: No, sir.

'The Court: Well, the next step is what we call an arraignment. That is the reading of this charge and furnishing you with a copy. Are you ready to have that done at this time?

'Mr. Bloor: Pardon, sir?

'The Court: I say, the next step is what we call an arraignment. That means the reading of this charge and furnishing you with a copy. You ready to have that at this time?

'Mr. Bloor: Yes.

'The Court: You may proceed then with the arraignment.'

That was the only advice plaintiff received in open court as to his right to counsel.

If that were the only record before us it would be a more difficult case. We would then be presented with the same problem as that presented to the Washington court in Wakefield v. Rhay, 1960, Wash., 356 P.2d 596. We will discuss that case later in this opinion. However, here other evidence was presented. It must be remembered that this was a post-conviction proceeding at which plaintiff was entitled to present any item of evidence available to him to establish that he did not understandably waive his right to counsel. The Post-Conviction Act (ORS 138.510 et seq.) was adopted to grant to a person convicted of crime full opportunity for judicial review of alleged violation of constitutional rights. In doing so the burden was on plaintiff to show by a perponderance of the evidence that he did not knowingly waive his right to counsel. Moore v. State of Michigan, 1957, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

It is also important to note that this case is not within the pattern of the long line of decisions by the Supreme Court beginning with Johnson v. Zerbst, supra, by which the Supreme Court has reviewed cases in which either a state of federal court has refused some form of post-conviction hearing and has remanded the case for a determination of the truth of a convicted person's allegations of denial of constitutional rights. Rice v. Olson, 1945, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Uveges v. Commonwealh of Pennsylvania, 1948, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Massey v. Moore, 1954, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 1955, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Cash v. Culver, 1959, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; McNeal v. Culver, 1960, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445. The hearing required by these decisions has been had.

Consequently, what we have here for review is the evidence presented to the trial court in this post-conviction hearing. It is our problem to decide if there is evidence, or want of it, to sustain the trial court's findings. And that problem has been a difficult one. It is a question of fact.

A material problem of decision, both in the trial court and here, has been to decide the truth or falsity of the testimony of plaintiff presented to the trial court in this proceeding. Obviously, the trial court's ability to assess that testimony exceeds our own. In addition to the determination of the truth of plaintiff's testimony it was necessary for the trial court to weigh plaintiff's ability to have understood the nature and seriousness of the original criminal charge made against him.

We will not discuss the evidence in detail but only mention some of the evidence considered by the trial court in this case.

There is in the record a recorded interview between plaintiff and the district attorney and sheriff made before he entered the plea of guilty. At this time plaintiff was advised of his right to counsel. We have the evidence that more than thirty days elapsed between the date of the plea and the date of the sentence. He had ample time to reconsider. We have the evidence that plaintiff's father and older sister, whose intelligence was not questioned, were present in court at the time plaintiff was arraigned and that he had talked with them prior thereto. They were also present at the post-conviction hearing but were not called as witnesses. We mention that evidence to show that this was not a case in which plaintiff was deprived of opportunity to consult with others. The...