Barber v. Gladden
| Decision Date | 19 July 1961 |
| Citation | 228 Or. 140,363 P.2d 771 |
| Parties | George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
George R. Barber, in pro. per.
Robert Y. Thornton, Atty. Gen., and Harold W. Adams, Asst. Atty. Gen., for respondent.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
This is the third time Barber has been here. In the first case, reported at 1957, 210 Or. 46, 298 P.2d 986, 309 P.2d 192, he was denied habeas corpus relief. In the second case, 1958, 215 Or. 129, 332 P.2d 641, also habeas corpus, we held that the petition was barred by res judicata. In the opinion in that case, however, we said: 'If a petitioner establishes that the grounds asserted in his petition could not reasonably have been presented in the prior proceeding he will not be precluded from asserting them.' 215 Or. at page 136, 332 P.2d at page 644. This is a proceeding under the recently enacted Post-Conviction Act, ORS 138.510 et seq. He alleges grounds for relief not previously mentioned in either of the two proceedings. In order to explain our decision we will briefly state the facts.
There is no question about res judicata in this case. ORS 138.550(4) permits one time around under the Post-Conviction Act when a petitioner was not represented in a prior habeas corpus proceeding by an attorney and in the post-conviction petition alleges facts not 'specifically decided' in a former case.
In 1953 Barber plead guilty to an indictment returned against him in Douglas county charging him with safecracking with the use of explosives. On November 20, 1953, he appeared in the circuit court of that county for sentence. In the commission of the crime charged Barber had been helped by two accomplices. For reasons not know nor pertinent here, the two accomplices were charged with a lesser degree of the crime. The two accomplices also appeared for sentence on November 20, 1953, at the same time that Barber was before the court. The two accomplices were represented by one attorney, Barber by another.
When the attorney for the accomplices was addressing the court on behalf of his clients he charged that Barber had written his clients a letter in which Barber threatened to kill his clients if they testified against him. The letter, if any existed, was not brought into court. Barber now alleges that the statement by the attorney was so prejudicial that it caused the court to sentence him to 25 years and to sentence the two accomplices to only 3 years. The sentencing proceedings were not reported. However, it is admitted that such a statement was made.
In the trial of this post-conviction proceeding in the circuit court the circuit judge who sentenced Barber and the attorney who appeared for Barber at that time were present and testified. All agree that the claimed statement was made. However, not only those witnesses but Barber himself also testified that at the time no objection or protest to the statement was made, nor did Barber or his attorney request the court to consider evidence in aggravation or mitigation of sentence as provided by ORS 137.080 et seq. Because of this the trial court, in this...
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Buchea v. Sullivan
...statements of his prior criminal record at the time of his sentence. We held that such use was proper. Also see Barber v. Gladden, 228 Or. 140, 143, 363 P.2d 771 (1961), cert. denied, 369 U.S. 838, 82 S.Ct. 869, 7 L.Ed.2d 843 In State v. Scott, 237 Or. 390, 390 P.2d 328 (1964), the defendan......
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State v. Coutts
...by actual testimony, the court may on a sentencing hearing hear the presentation in a more informal manner. See Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961), interpreting O.R.S. §§ 137.080 and .090, which are essentially identical to I.C. §§ 19-2515(a) and 19-2516. Williams v. State,......
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State v. Reid, 37256
...JJ., concur. 1 Barber v. Gladden, 210 Or. 46, 298 P.2d 986, 309 P.2d 192 at 196, affirmed 215 Or. 129, 332 P.2d 641 (1958) and 228 Or. 140, 363 P.2d 771 (1961); State v. Popiel, 216 Or. 140, 337 P.2d 303 (1959); Jensen v. Gladden, 231 Or. 141, 372 P.2d 183 (1962); State v. Steagall, 214 Or.......
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State v. Deck
...Coffman v. Gladden, 229 Or. 99, 366 P.2d 171 (1961) (unsworn statements about defendant's prior criminal record); Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961) (unsworn statement that defendant had threatened to kill his accomplices if they testified against him); Admire v. Gladden, 2......