564 P.2d 1366 (Or.App. 1977), Barzee v. Cupp

Citation:564 P.2d 1366, 29 Or.App. 705
Opinion Judge:SCHWAB, C. J.
Party Name:Robert C. BARZEE, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
Attorney:Robert C. Barzee, Salem, filed the brief pro se for appellant. James A. Redden, Attorney General, and W. Michael Gillette, Solicitor General, Salem, filed the brief for respondent.
Case Date:June 06, 1977
Court:Court of Appeals of Oregon

Page 1366

564 P.2d 1366 (Or.App. 1977)

29 Or.App. 705

Robert C. BARZEE, Appellant,


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

Court of Appeals of Oregon.

June 6, 1977

       Submitted on Record and Briefs May 20, 1977.

Page 1367

       [29 Or.App. 706] Robert C. Barzee, pro se.

       James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem, filed the brief for respondent.

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

       [29 Or.App. 707] SCHWAB, Chief Judge.

       In this appeal from the denial of post-conviction relief, petitioner contends (1) that the form of the order entered below fails to comply with the requirements of ORS 138.640; (2) that the court erred in finding that petitioner was not denied effective assistance of counsel; and (3) that the court erred in finding that the statute of limitations had not run prior to the time petitioner was indicted.

       ORS 138.640 provides:

'* * * The order making final disposition of the petition (for post-conviction relief) shall state clearly the grounds upon which the cause was determined, and whether a state or federal question, or both, was presented and decided. * * *'

       Here the order states that petitioner sought post-conviction relief on the grounds that '(1) the Baker County Circuit Court had no jurisdiction, and (2) his attorney's representation was inadequate,' and that petitioner failed to prove either claim. The purpose of ORS 138.640 is to provide an appellate court with knowledge of what issues were presented and resolved by the trial court. Since it is evident that a claim of lack of jurisdiction involves a state law question and a claim of inadequate representation by counsel involves a constitutional question, the order met the requirements of ORS 138.640.

       As to the claim of incompetence of counsel, petitioner has the burden of showing not only counsel's incompetence, but also prejudice resulting therefrom. Hussick v. State of Oregon, 19 Or.App. 915, 529 P.2d 938 (1974), Sup.Ct. Review denied (1975); Storms v. Cupp, 13 Or.App. 273, 508 P.2d 450, Sup.Ct. Review denied (1973). Petitioner contends that his decision, after plea bargaining, to plead guilty to a charge of second degree rape was influenced by his counsel's erroneous advice that in a trial for incest evidence of prior acts of incest with the same victim would be admissible. The advice [29 Or.App. 708]...

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