Harris v. Cupp

• Decision Date: 26 August 1971
• Citation: 487 P.2d 1402,6 Or.App. 400
• Parties: Floyd Warren HARRIS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 1402

487 P.2d 1402

6 Or.App. 400

Floyd Warren HARRIS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted June 21, 1971.

Decided Aug. 26, 1971.

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, 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 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. 1970), a habeas corpus proceeding, a prior Oregon state court conviction in 1952 had been relied upon to support an enhanced penalty in a 1964 Oregon recidivist proceeding. The judgment roll of the 1952 proceeding said in pertinent part:

'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 * * *.'

Nothing in the judgment roll indicated that Schram was advised specifically that he had a right to counsel at public expense. There the court held that Schram could not be held to have intelligently and understandingly waived his right to counsel when he was not told reasonably contemporaneously that he had 'a right to free counsel.' The court said this was so even though there was proof that Schram had asked for and received court-appointed 'free' counsel in a different case in a different Oregon county four years before his 1952 plea.

In the present case there is nothing in the record to show that the then 21-year-old petitioner, in the 1951 proceeding, was advised or knew of his right to counsel at public expense and the petitioner denied knowing or having received such advice. Our Supreme Court said in Miller v. Gladden, 249 Or. 51, 54, 437 P.2d 119, 121 (1968):

'* * * A valid waiver, which requires knowledge, is never presumed from a silent record in the sentencing court, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Otherwise, there would be no object in requiring that an accused...