742 P.2d 600 (Or. 1987), SC S33394, Hartzog v. Keeney

Docket Nº:(TC 151,489; CA A37667; SC S33394).
Citation:742 P.2d 600, 304 Or. 57
Opinion Judge:LENT, J.
Party Name:Sammy R. HARTZOG, Petitioner on Review, v. J.C. KEENEY, Superintendent, Oregon State Penitentiary, Respondent on Review.
Attorney:Eric J. Johansen, Salem, argued the cause and filed the petition for petitioner on review. Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent on review.
Case Date:September 09, 1987
Court:Supreme Court of Oregon

Page 600

742 P.2d 600 (Or. 1987)

304 Or. 57

Sammy R. HARTZOG, Petitioner on Review,

v.

J.C. KEENEY, Superintendent, Oregon State Penitentiary,

Respondent on Review.

(TC 151,489; CA A37667; SC S33394).

Supreme Court of Oregon, En Banc

September 9, 1987

Argued and Submitted April 8, 1987.

[304 Or. 58] Eric J. Johansen, Salem, argued the cause and filed the petition for petitioner on review.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

[304 Or. 59] LENT, Justice.

The issue in this post-conviction proceeding is whether in the proceedings resulting in petitioner's conviction there was a substantial denial of his constitutional rights so as to render his conviction void, 1 where before entering his guilty plea he was not aware of the possibility of imposition of a minimum sentence, and a minimum sentence was actually imposed under ORS 144.110(1). 2 We hold there was such a denial.

Petitioner was arrested and indicted for murder. He pleaded not guilty. Shortly before the date set for trial, plea bargaining resulted in an offer to reduce the charge to manslaughter in the first degree in return for a plea of guilty to that

Page 601

charge. Petitioner pleaded guilty to a district attorney's information charging the crime of manslaughter in the first degree. The criminal trial court sentenced petitioner to 20 years in the custody of the Corrections Division with a minimum term of 10 years to be served as allowed by ORS 144.110(1). He appealed, and the Court of Appeals affirmed from the bench. State v. Hartzog, 59 Or.App. 410, 651 P.2d 750 (1982).

In the present post-conviction proceeding, petitioner has alleged that his constitutional right to have adequate counsel under Article I, section 11, of the Oregon Constitution and under the Sixth and Fourteenth Amendments to the Constitution of the United States was denied because his appointed criminal trial counsel did not advise him of the [304 Or. 60] possibility that he could receive a minimum sentence of 10 years before being eligible for parole or work release. He further alleged that there was a substantial denial of his state and federal constitutional rights by reason of the failure of the criminal trial court to advise him of the possibility of a minimum sentence before he entered his guilty plea that resulted in his sentence.

Under ORS 138.620(2), petitioner had the burden in the post-conviction court to prove by a preponderance of the evidence that he was not advised of the possibility of a minimum sentence prior to entering a plea of guilty to the charge of manslaughter in the first degree. He presented evidence from which the post-conviction court found:

"Petitioner's trial attorney did not explain to Petitioner the possibility of his receiving a mandatory minimum sentence before his change of plea.

"The Court did not explain to Petitioner the possibility of his receiving a mandatory minimum sentence before his change of plea." 3

The post-conviction court concluded that the failure of counsel to inform petitioner of the possibility of his receiving a mandatory minimum sentence before he entered his guilty plea constituted inadequate assistance of counsel. The court further concluded that the failure of the criminal trial court to advise petitioner of the possibility of a mandatory minimum sentence prior to entry of a guilty plea "resulted in a guilty plea that was not the result of a knowing and voluntary waiver of Petitioner's rights."

The post-conviction court's judgment was that petitioner's guilty plea "is hereby withdrawn and declared null and void" and that petitioner was to be delivered back to the county of his conviction for further proceedings.

Respondent appealed and challenged both conclusions of the post-conviction court. Respondent drew to the [304 Or. 61] attention of the Court of Appeals that there was disputed evidence before the post-conviction court from which that court could have found that petitioner was apprised of the possibility of a minimum sentence between the entry of the plea and the pronouncement of sentence by reason of evidence that petitioner saw the presentence report recommending a minimum sentence and, nevertheless, did not attempt to withdraw his plea. Respondent conceded, however, that "this point...

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