Bailleaux v. Gladden

• Decision Date: 25 April 1962
• Citation: 370 P.2d 722,230 Or. 606
• Parties: Paul R. BAILLEAUX, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 722

370 P.2d 722

230 Or. 606

Paul R. BAILLEAUX, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State

Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 1, 1961.

Decided April 25, 1962.

Thomas B. Brand, Salem, argued the cause and filed a brief for appellant.

Harold W. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

Bailleaux, the petitioner, is an inmate of the Oregon State Penitentiary. He brought this action under the Oregon Post-Conviction Hearing Act (ORS 138.510 to 138.680), seeking thereby to obtain a discharge from penal confinement. The circuit court sustained defendant's demurrer to the petition upon the ground that it failed to state facts sufficient to constitute a ground for relief. Bailleaux having refused to plead over, his petition was dismissed. From that order he appeals.

The sole question presented is whether the petition alleges sufficient facts to entitle petitioner to the relief sought.

This case had its origin in petitioner's conviction in the Circuit Court for Clackamas county on May 8, 1957, as being a Previously Convicted Felon Carrying a Concealed Weapon (ORS 166.270). He was first sentenced to the penitentiary for a period of five years. On September 4, 1957, an information was filed against him under the Habitual Criminal Act (ORS 168.010 et seq.). Following a trial by jury, three of the four previous convictions were found as charged in the information. The court thereupon vacated the previous sentence of five years and entered a new judgment, sentencing the petitioner to 30 years. From this judgment in the habitual criminal proceeding, petitioner appealed without success. State v. Bailleaux, 218 Or. 356, 343 P.2d 1108, cert. denied 362 U.S. 923, 80 S.Ct. 677, 4 L.Ed.2d 742.

In his present petition he alleges the following two grounds for relief. Petitioner first asserts that the Habitual Criminal Act was applied in a discriminatory manner as to him. Paragraph VI(1) of his petition reflecting this position reads as follows:

'That notwithstanding the fact that Oregon's habitual criminal act (ORS 168.010 et seq.) provides no basis for distinguishing one offender from another, the prosecuting attorneys for the State of Oregon possess and follow a fixed, continuous and concerted plan not to enforce the habitual criminal laws against any offender of Negro, Chinese, Mexican or Indian race; that, on the contrary, the prosecuting attorneys for the State of Oregon knowingly, willfully, and by design enforce the habitual criminal laws exclusively against white offenders, which constitutes an illegal and unjust discrimination against petitioner, a white Caucasian, imprisoned in the Oregon State Penitentiary pursuant to action brought under the Oregon habitual criminal act; and that the said arbitrary, intentional, collusive, wrongful, and deliberate discriminatory intent on the part of the prosecuting attorneys for the State of Oregon and the law enforcement officials of the State of Oregon and the defendant herein, now existing in the administration of the habitual criminal act, deprive petitioner of the equal protection of the laws and equal justice, in violation of Article I, Section 20 of the Oregon Constitution and the Fourteenth Amendment of the United States Constitution.'

Petitioner's second ground is that he was twice placed in jeopardy for the same offense. His pleading (Paragraph VI(2)) in support of this contention is as follows:

'That as appears from a copy of the indictment attached hereto * * *, your petitioner was charged by the State of Oregon, County of Clackamas, with the crime of being a Previously Convicted Felon Carrying a Concealed Weapon under ORS 166.270 and that the crime enumerated in the said indictment in the original cause in the above-entitled matter was the crime of Assault and Robbery Being Armed with a Dangerous Weapon in the County of Multnomah, State of Oregon, and from which petitioner was duly convicted on the 4th day of May, 1950. It further appears from the petition and documents on file herein that the Information filed against petitioner, attached hereto and marked Exhibit 'D', accused him of previous felony convictions consisting of the following: Conviction of Robbery on 5 September 1939, in the County of Los Angeles, State of California; Conviction of Robbery on the 2nd day of July, 1943, in the County of King, State of Washington; Conviction of Assault and Robbery Being Armed with a Dangerous Weapon on the 4th day of May, 1950, in the County of Multnomah, State of Oregon; Conviction of Attempted Burglary not in a dwelling committed on the 29th day of April, 1957, which said last conviction was stricken from the jury and not considered by the said jury. The inclusion of the conviction of Assault and Robbery being armed with a Dangerous Weapon of May, 1950 under the charge of previously convicted felon carrying a concealed weapon thus giving rise to a felony conviction of the said crime and the inclusion again of the same Conviction of Assault and Robbery Being Armed with a Dangerous Weapon of May 4, 1950, being the same crime and being the same charge, results in the inclusion of the said conviction for two purposes in the same matter, to-wit: Once for the substantive crime of previously convicted felon carrying a concealed weapon and secondly for the purpose of enhancing the penalty under the habitual criminal act, which said double inclusion resulted in your petitioner being twice placed in jeopardy of life and limb for the same offense, in violation of petitioner's rights under Article I, Section 12 of the Oregon Constitution and the Fifth Amendment of the United States Constitution, and the 14th Amendment of the United States Constitution.'

For the reasons which follow, we find no merit in petitioner's appeal.

The gravamen of petitioner's assertion of discrimination is, as we have observed, the failure of the various district attorneys of this state to file informations against previously-convicted felons who are Negroes, Chinese, Mexicans or Indians.

On the authority of State v. Hicks, 213 Or. 619, 325 P.2d 794, cert. denied 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 579, we hold that discrimination of the kind and character the petitioner attempts to plead does not fall within the purview of the Equal Protection Clause. See, also, the recent case of Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446. It is not a denial of equal protection that one person amenable to an enhanced penalty under the Habitual Criminal Act has his penalty increased and the act is not applied to other previously-convicted felons. The plea of denial of equal protection now made is substantially the same plea raised by petitioner before in his direct appeal from the order in the habitual criminal proceeding which increased his penalty. On that appeal it was cast against a slightly different background and repudiated by the court in State v. Bailleaux, supra, 218 Or. at 360, 343 P.2d 1108.

We are impressed with the analysis of the Yick Wo doctrine (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220) made in People v. Montgomery, 47 Cal.App.2d 1, 117 P.2d 437, 446, and cited with approval at page 640 of 213 Or., at page 804 of 325 P.2d, in State v. Hicks, supra. We note again its statement that the remedy for unequal enforcement of the law 'does not lie in the exoneration of the guilty at the expense of society.' We also find that the Montgomery case has since been consistently followed and applied in California. People v. Darcy, ...