Page v. Cupp

• Decision Date: 16 April 1986
• Citation: 717 P.2d 1183,78 Or.App. 520
• Parties: Charles Henry PAGE, Petitioner, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent. 142527; CA A34280.
• Court: Oregon Court of Appeals

Page 1183

717 P.2d 1183

78 Or.App. 520

Charles Henry PAGE, Petitioner, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

142527; CA A34280.

Court of Appeals of Oregon.

Argued and Submitted Sept. 23, 1985.

Decided April 16, 1986.

Lester E. Seto, Salem, argued the cause and filed brief for petitioner.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., Scott McAlister and Robert J. Jackson, Asst. Attys. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Petitioner appeals the dismissal of his petition for post-conviction relief. Three grounds for relief were alleged: (1) he was unconstitutionally denied effective assistance of post-conviction counsel with respect to his first post-conviction proceeding, (2) he was unconstitutionally denied effective assistance of trial counsel with respect to his criminal prosecution and (3) he was unconstitutionally denied a jury trial. The trial court, after reviewing all of the evidence, and over both parties' objection, dismissed the petition, ruling that the first ground raised does not state facts sufficient to constitute a claim for relief and that the latter two could reasonably have been raised in the first post-conviction proceeding and were, therefore, barred by the res judicata effect of ORS 138.550(3). We affirm.

Petitioner was convicted in 1980 of robbery in the first degree after pleading guilty pursuant to a plea bargain agreement. In 1981, he filed a petition for post-conviction relief, alleging that the state had violated the plea agreement in that the state trial judge had agreed to confer with federal authorities in an attempt to have his state prison sentence and a potential federal prison sentence run concurrently, but had not done so. At the hearing on that petition, petitioner's original trial counsel testified that the plea agreement did not include an agreement by the trial judge to confer with federal authorities and that he had misinformed petitioner in that regard. Notwithstanding that development, post-conviction counsel did not ask for leave to amend the petition, and relief was denied. Petitioner now alleges that he was misled by his trial attorney regarding the agreement's terms, as a result of which he was denied the effective assistance of counsel and did not knowingly and voluntarily waive a jury trial.

The Post-Conviction Hearing Act, ORS 138.510 et seq, was enacted to eliminate the confusion caused by the multitude of common law remedies that were available to challenge the lawfulness of criminal convictions. ¹ In theory, the act provides a single, exclusive remedy. See Strong v. Gladden, 225 Or. 345, 348, 358 P.2d 520 (1961). It does not, however, provide recourse for all persons illegally restrained. In this regard, ORS 138.540(2) provides:

"When a person restrained by virtue of a judgment upon a conviction of crime asserts the illegality of his restraint upon grounds other than the unlawfulness of such judgment or the proceedings upon which it is based or in the appellate review thereof, relief shall not be available under ORS 138.510 to 138.680 but shall be sought by habeas corpus or other remedies, if any, as otherwise provided by law."

Petitioner's first allegation, that counsel in his first post-conviction proceeding was ineffective, ² is neither an attack on the legality of the proceedings upon which his conviction is "based," i.e., the trial and pretrial hearings, nor an attack on the "appellate review thereof." It is an attack, rather, on his first post-conviction proceeding; no more and no less. Consequently, that allegation does not raise a ground for post-conviction relief. Hetrick v. Keeney, 77 Or.App. 506, 713 P.2d 688 (1986).

ORS 138.550(3), under which petitioner's second and third claims for relief were dismissed, provides:

"All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in his original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition."

Petitioner argues that the grounds for relief raised by the dismissed claims, that he was unconstitutionally denied effective assistance of trial counsel and a jury trial, could not reasonably have been raised in the earlier proceeding, because his counsel in that proceeding was ineffective. He contends that, because of the attorney's ineffectiveness, the fact that his trial attorney had misled him was not revealed before the first hearing took place and that "effective" post-conviction counsel would have amended the original petition to raise the allegations immediately after the revelation. In other words, he argues that he should not be barred from raising the allegations now, because it was his post-conviction counsel's ineffectiveness, not his own neglect, that resulted in the failure to raise them in the original proceeding.

The state agrees with those contentions. In so doing, however, it does not mention Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), the rationale of which appears to us to be controlling. In Church, the petitioner alleged that he could not reasonably have asserted in his first post-conviction proceeding the grounds...