487 P.2d 1402 (Or.App. 1971), Harris v. Cupp

Citation:487 P.2d 1402, 6 Or.App. 400
Opinion Judge:FOLEY, J.
Party Name:Floyd Warren HARRIS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
Attorney:J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Jim G. Russell, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob...
Case Date:August 26, 1971
Court:Court of Appeals of Oregon
 
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Page 1402

487 P.2d 1402 (Or.App. 1971)

6 Or.App. 400

Floyd Warren HARRIS, Appellant,

v.

Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

August 26, 1971

Argued and Submitted June 21, 1971.

Page 1403

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jim G. Russell, Asst. Atty. Gen., Salem, [6 Or.App. 401] argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

This is an appeal by petitioner from a judgment in which the trial court dismissed the post-conviction petition and denied relief.

Petitioner received a four-year sentence in 1968 on a charge of being an ex-convict in possession of a firearm, based on a 1951 federal court guilty plea conviction of theft from interstate shipment. 1 Petitioner claims the 1951 conviction was invalid because he was not advised of his right to court-appointed counsel At public expense.

The petitioner testified in the post-conviction trial that neither the U.S. attorney nor the court had informed him of his right to court-appointed counsel, that is, 'free' 2 counsel. The only other evidence in the record in this connection is the judgment roll from petitioner's 1951 conviction which recited that petitioner[6 Or.App. 402] appeared '* * * in person, and without counsel.', and a minute entry of the arraignment in the 1951 conviction which recited:

'* * * The court advised defendant of his right to counsel at all stages of the proceedings and the defendant declined the services of counsel. * * *'

Defendant warden contends that the record is not silent regarding waiver of counsel at the 1951 guilty plea proceedings and we agree. The question, however, is whether petitioner was advised or knew that he had a right to free counsel. Petitioner claims the court said nothing at all to him concerning representation by an attorney and 'if a lawyer had been offered, I would have accepted him.' The defendant claims that there is an inference from the above quoted documents that the right to counsel would be at public expense, although not specifically mentioned in the record of proceedings.

In Schram v. Cupp, 436 F.2d 692, 693 (9th Cir...

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