543 P.2d 45 (Or.App. 1975), Heuer v. Cupp

• Citation: 543 P.2d 45, 23 Or.App. 592
• Opinion Judge: FOLEY, J.
• Party Name: James Joseph HEUER, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Attorney: Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem., Donald L. Paillette, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, a...
• Case Date: December 15, 1975
• Court: Court of Appeals of Oregon

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543 P.2d 45 (Or.App. 1975)

23 Or.App. 592

James Joseph HEUER, Appellant,

v.

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

Court of Appeals of Oregon.

December 15, 1975

Argued and Submitted Nov. 20, 1975.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

[23 Or.App. 593] Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

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

FOLEY, Judge.

In February 1967 petitioner pleaded guilty to assault and robbery while armed, former ORS 163.280, and was sentenced. In this proceeding seeking post-conviction relief, his principal contention is that he entered his guilty plea without knowing the maximum penalty for the offense. He also contends that he did not otherwise know the consequences of his guilty plea. The trial court denied post-conviction relief and petitioner appeals.

On February 6, 1967, petitioner was arraigned on the charge of assault and robbery while armed. He waived presentation to the grand jury and the right to counsel. He then entered a guilty plea to the district attorney's information and was sentenced. He testified in the post-conviction proceeding that he was not advised by the trial court of the maximum sentence nor did he otherwise know the consequences of his guilty plea.

The burden is upon the petitioner to prove the allegations of his petition by a preponderance of the evidence. ORS 138.620(2); Bloor v. Gladden, 227 Or. 600, 603, 363 P.2d 57 (1961). However, if the record of the conviction court is silent, waiver of constitutional rights is not presumed and the burden is upon the defendant warden to prove either waiver or that petitioner had knowledge of his rights. Harris v. [23 Or.App. 594] Cupp, 6 Or.App. 400, 487 P.2d 1402(1971), Sup.Ct. Review denied (1972).

Petitioner testified that he had no knowledge of the consequences of his

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plea. He testified, however, that prior to his confession he had been advised of his Miranda rights, which included his right to remain silent. He also testified that he had never heard of a jury trial but the conviction court record shows that when he waived grand jury indictment the court explained...