Schram v. Cupp

• Decision Date: 25 November 1970
• Docket Number: No. 24077.,24077.
• Citation: 436 F.2d 692
• Parties: Thomas Patrick SCHRAM, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

436 F.2d 692 (1970)

Thomas Patrick SCHRAM, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Appellee.

No. 24077.

United States Court of Appeals, Ninth Circuit.

November 25, 1970.

Jack B. Schwartz (argued), Portland, Or., for appellant.

Thomas H. Denney (argued), David H. Blunt, Asst. Attys. Gen., Lee Johnson, Atty. Gen., State of Oregon, Portland, Or., for appellee.

Before BARNES, ELY, and HUFSTEDLER, Circuit Judges.

PER CURIAM.

The majority opinion and the dissenting opinion heretofore filed on April 17, 1970, are ordered withdrawn.

The annexed majority opinion in which Circuit Judges ELY and HUFSTEDLER concur and the dissenting opinion of Circuit Judge BARNES are ordered filed.

The petition for rehearing is dismissed as moot.

HUFSTEDLER, Circuit Judge:

Schram appeals from an order of the District Court dismissing, without an evidentiary hearing, his petition for federal habeas relief from an Oregon judgment. (28 U.S.C. §§ 2241-2254.) He had exhausted his state remedies before he filed his petition for federal relief.¹

At issue is the constitutional validity of two prior convictions relied upon by an Oregon court to increase the penalty upon his last conviction from three years to twenty years under the provisions of Oregon's habitual offender statute. (Ore.Rev.Stat. §§ 168.015 et seq.)

Schram's Oregon convictions began in 1946, when he pleaded guilty to one count of an information charging him with obtaining $20 by false pretenses. In 1948, he was convicted upon two counts of unarmed robbery following his plea of guilty to each count. In 1952, he was convicted upon one count of unarmed robbery to which he had entered a guilty plea. Finally, in 1964, he was convicted upon one count of an information charging him with burglary not of a dwelling, for which he was initially sentenced to an indeterminate three-year term in the penitentiary. Thereafter, Oregon instituted recidivist proceedings charging him with felony convictions in 1946, 1948, and 1952. The court found that Schram had three convictions prior to his 1964 conviction, vacated the three-year sentence upon his 1964 conviction, and imposed the twenty-year sentence that Schram is presently serving.

Schram then sought postconviction relief in a state court in Oregon challenging the validity of the 1946 and 1952 convictions on the grounds that he had not been represented by counsel and had not knowingly and intelligently waived counsel on either occasion and that he had not voluntarily entered the guilty pleas. An evidentiary hearing was held on his petition. Schram was the sole witness. The judge who took Schram's pleas and sentenced him in 1946 and 1952 had died before the hearing. The court reporter and the prosecuting attorney were also dead. The contemporaneous record of the 1946, 1948, and 1952 proceedings was limited to the judgment rolls.

The judgment roll of the 1946 conviction reveals only that Schram expressed a desire for counsel. It is barren of any indication that Schram was given or had waived counsel.

The judgment roll of the 1952 conviction contains a document entitled "Waiver, Arraignment and Plea." It recites: "The defendant having been advised by the Court of his right to be represented by counsel, and the defendant having stated that he did not desire counsel * * * the Information was read by the District Attorney under the direction of the Court * * * and * * * defendant pleaded guilty thereto." Nothing in the judgment roll indicated that Schram was advised specifically that he had a right to counsel at public expense. At his state evidentiary hearing, Schram testified that he was not so advised and that he did not know his right. He knew he was entitled to a lawyer if he could hire one, but neither he nor his family had the financial means to do so. He testified that no one told him about the elements of the offense, the possible defenses, or the maximum punishment for the 1952 offense. He further testified that neither his lawyer in the 1948 case nor anyone else had told him any of those things. There was no contrary evidence.

The Oregon court found the following facts: In 1946, Schram was charged with obtaining money by false pretenses. He "was advised of his right to counsel, but he was not informed that he could have an attorney at public expense if he was without funds. The court record is incomplete and ambiguous as to defendant's expressed wish concerning counsel. * * * The petitioner discussed the charge against him with the Klamath County Sheriff who told him he ought to plead guilty, because he would probably get only a little jail time and probation. A few days later, the petitioner again appeared in court without counsel and freely and voluntarily plead guilty to the crime of obtaining money by false pretenses. * * * He knew the consequences and meaning of pleading guilty and he knew the facts from which the charge against him arose. No one had explained to him, however, the technical aspects, possible defenses, or the elements of the crime. Petitioner hoped that since it was a first offense, the court would grant probation. Instead, a sentence to the Oregon State Penitentiary for two years was imposed and ordered executed." However, the court expressly declined to decide the validity of the 1946 conviction.

With respect to the 1952 conviction, the Oregon court found that Schram had no counsel, that he was told that he had a right to counsel, and that he was not told in 1952 that he had a right to free counsel. It also found that Schram knew that he had a right to court-appointed counsel, relying solely upon entries in the judgment roll of his 1948 conviction indicating that Schram had then requested counsel and the court appointed a lawyer for him. Court-appointed counsel later withdrew when private counsel was retained for him.

On appeal from the order denying his petition for postconviction relief, the order was affirmed by a divided court. (Schram v. Gladden, supra, 444 P.2d 6(4-3).) The majority of the court held that the trial court's finding that Schram knew in 1952 that he had a right to court-appointed counsel was amply supported by the recitations in the record of his 1948 conviction. It concluded that the trial court did not err in deciding that Schram had validly waived counsel in 1952.

The Federal District Court received in evidence the record of the Oregon postconviction hearing. It conducted no evidentiary hearing of its own. The District Court found that the 1952 conviction was valid, failed to decide the validity of the 1946 conviction, and denied relief, from which order Schram appeals.

Assuming without deciding, that the burden was on Schram in his proceedings to obtain relief on federal habeas to prove that he did not knowingly and intelligently waive counsel in 1946 and 1952 (compare Carnley v. Cochran (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L. Ed.2d 70 with Burgett v. Texas (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319), we hold that Schram prima facie sustained that burden by introducing the record of his Oregon evidentiary hearing on the face of which appear the following facts: (1) he did not have counsel either in 1946 or in 1952, and (2) he was not contemporaneously advised on either occasion that he had a right to counsel supplied without cost to him.

Since the decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799, in 1963, the Supreme Court has made clear that a guilty plea to a serious crime entered without counsel and without a waiver of counsel fully complying with the standards of Johnson v. Zerbst (1938) 304 U.S. 458, 58 S. Ct. 1019, 82 L.Ed. 1461, is constitutionally infirm. (E. g., Brady v. United States (1970) 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63; McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed. 2d 2; Arsenault v. Massachusetts (1968) 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed. 2d 5; Mempa v. Rhay (1967) 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.)

The question is thus: Can a waiver of an indigent defendant's right to counsel at the time he enters a guilty plea to a felony charge be sustained when the record developed on collateral attack affirmatively shows that he was not contemporaneously advised that he had a right to free counsel? We hold that it cannot: An indigent defendant cannot be held to have intelligently and understandingly waived his right to counsel when he was not then told that he had a right to such counsel and none was supplied to him. (Commonwealth v. Ritchey (1968) 431 Pa. 269, 245 A.2d 446; Commonwealth v. Blose (1968) 430 Pa. 209, 241 A.2d 918; Cf. McGarrah v. Dutton (5th Cir. 1967) 398 F.2d 829 and McGarrah v. Dutton (5th Cir. 1967) 381 F.2d 161 (same case on prior appeal); see also Miranda v. Arizona (1966) 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694; Losieau v. Sigler (8th Cir. 1969) 406 F.2d 795, 799-801.)

To impart knowledge of the availability of free counsel to an indigent defendant, the advice must be reasonably contemporaneous with the asserted waiver of the right. (Cf. Shawan v. Cox (10th Cir. 1965) 350 F.2d 909; People v. Estrada (1965) 236 Cal. App.2d 221, 45 Cal.Rptr. 904; see also Miranda v. Arizona, supra, 384 U.S. at 472-473, 86 S.Ct. 1602; McGarrah v. Dutton, supra, 398 F.2d at 830.) To hold otherwise would seriously dilute the standards of waiver of fundamental constitutional rights repeatedly stated by the Supreme Court. (E. g., Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Carnley v. Cochran, supra, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed. 2d 70; Rice v. Olson (1945) 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367). Proof that Schram had asked for and received court-appointed counsel in a different case four years before his 1952 plea is insufficient as a matter of law to meet the contemporaneous test.¹

Because Schram's presentation of the record of the Oregon evidentiary hearing established his prima facie case warranting habeas relief in the district...