Benson v. Gladden

• Decision Date: 10 November 1965
• Citation: 407 P.2d 634,242 Or. 132
• Parties: Lennart A. BENSON, Appellant, v. Clarence T. GLADDEN, Warden, Respondent.
• Court: Oregon Supreme Court

Page 634

407 P.2d 634

242 Or. 132

Lennart A. BENSON, Appellant, v. Clarence T. GLADDEN, Warden, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 5, 1965.

Decided Nov. 10, 1965.

[242 Or. 133] Howard R. Lonergan, Portland, argued the cause and submitted briefs for appellant.

Mallory C. Walker, 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 PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

SCHWAB, Justice pro tem.

This is an appeal from a judgment dismissing the petition of Lennart A. Benson in consolidated post-conviction and habeas corpus proceedings ¹ in Marion county circuit court brought to set aside two judgments of conviction of forgeory in Lincoln county circuit court sentencing Benson to three years imprisonment on each of the convictions with the sentences running concurrently.

The trial on the petition was essentially on the record in the criminal proceedings in Lincoln county circuit court which was a consolidated trial under both indictments.

Benson's petition alleges that his imprisonment under the judgments of conviction is unlawful on the following grounds: '(a) lack of jurisdiction of the courts to impose judgments of conviction herein and unconstitutionality thereof; (b) substantial denial in the proceedings resulting in petitioner's conviction and in the appellate review thereof of petitioner's rights under the due process and equal protection clauses of section 1, 14 Amendment, United States Constitution and Article I, sections 9, 10, 11, 13, 16, 20, 21, 22 and 23 Oregon Constitution' because 'the record shows he is innocent of the crime of forgery because:

'(a) The checks are not false instruments no matter how interpreted, but are valid instruments as a matter of law;

'(b) The state admits there was no intent to defraud any particular person;

'and the record shows his counsel and attorneys were incompetent in having no understanding of the law of foregery, failed to present the matters showing his innocence either to the trial court or to the appellate court, and neither the prosecutor, trial court nor appellate court on its own gave any consideration to these matters.'

We first dispose of the question as to whether this is a post-conviction or habeas corpus proceeding.

The Oregon Post-Conviction Hearing Act, Oregon Laws 1959, ch. 636, ORS 138.500 to 138.680 and ORS 34.330 (1959) is thoroughly analyzed in Collins and Neil, The Oregon Postconviction-Hearing, Act, 39 Or.L.Rev. 337. As that article points out at page 346, this act provides at least as broad relief as was previously obtainable by habeas corpus inquiry into criminal convictions. See ORS 138.530(2). ² Section 22 of the 1959 act, codified as ORS 34.330, accomplishes the aim of the act to replace habeas corpus with post-conviction proceedings when a criminal conviction is challenged. The pertinent portion of the article cited above reads as follows:

'Section 22. ORS 34.330 is amended to read as follows:

'34.330. The following persons shall not be allowed to prosecute the writ:

'(1) Persons imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer.

'(2) Persons imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree.

'(3) Except as provided in section 6 of this 1959 Act, persons eligible to obtain post-conviction relief pursuant to this 1959 Act.

'This section accomplishes the aim of the act to replace habeas corpus (as well as other postconviction remedies) with a single uniform proceeding when a criminal conviction is challenged. The addition of the third subsection to section 34.330 will limit the application of the habeas corpus statutes to situations in which such a challenge is being made. By virtue of this amendment, habeas corpus in the circuit court will never be available when a prisoner may file a petition under the act.

'An erroneous cross reference occurs in the amended subsection (3) of section 34.330. The cross reference was intended to be to section 5 of the act--Or.Rev.Stat. sec. 138.530(3)--rather than section 6--sec. 138.560. The intention of the cross reference was to except habeas corpus in the supreme court, which derives from the Constitution, from the language of the amendment. The draftsmen inadvertently did not change this cross-reference to reflect a renumbering of earlier sections before the bill was submitted to the Legislature. The cross reference to section 6 is meaningless.

'The question arises whether the amendment of section 34.330 in this respect may 'suspend' the writ of habeas corpus as guaranteed by the Oregon constitution. The act would appear to provide for postconviction relief upon grounds at least as comprehensive as those formerly available in habeas corpus proceedings. If this is the case, habeas corpus, as used to attack a criminal conviction, has been superseded in name only. Indeed, in apparently the first case involving this issue, a circuit court upheld the constitutionality of the act against a claim that the substitution of the remedy of the act for habeas corpus abridged the guarantee These proceedings are under the post-conviction hearing act and are not habeas corpus proceedings.

of the writ. The court relied on Shakespeare's dictum that a 'rose by any other name would smell as sweet.'' Collins and Neil, op. cit. at 363-64.

The provisions of the post-conviction act, ORS 138.530, under which petitioner seeks relief, are:

'(1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:

'(a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.

'(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner's conviction.'

Benson's petition for post-conviction relief, the essentials of which are set forth supra, bring him within the purview of this act and entitle him to have his contentions considered on their merits unless he is barred from seeking relief by virtue of that portion of the act, ORS 138.550(2) which states:

'(2) When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to his lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 to 138.680 which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 to 138.680, unless otherwise provided in this section.'

Benson was represented by two separate counsel of his own choosing upon his trial for forgery. He retained two additional counsel to argue his motion for a new trial. When this motion was denied, he retained one of the two counsel who had represented him in connection with the motion for a new trial to prosecute an appeal from the convictions. When his convictions were affirmed on appeal, State v. Benson, 235 Or. 291, 384 P.2d 208, counsel who had handled the appeal filed a petition for rehearing which was denied. He then obtained his present counsel who filed a second petition for rehearing, which was denied. ³ It follows that he is barred from seeking post-conviction relief unless it can be said that he could not reasonably have asserted his present contentions in the direct appellate review proceedings.

An examination of the record discloses that there is no information now known to petitioner and his counsel that was not available at the time of trial. In State v. Avent, 209 Or. 181, 302 P.2d 549, this court held that it would, in some circumstances in criminal cases, relax the rule that it would not consider error not legally excepted to if, upon an examination of the entire record, it could say that error was manifest and the ends of justice would not otherwise be satisfied. Further, Rule 46 of this court provides, 'In appeals in actions at law no alleged error of the circuit court will be considered by this court unless regularly assigned as error in the appellant's opening brief, except that this court reserves the right to take notice of an error of law apparent on the face of the record.' It follows that there was no procedural bar to bringing egregious error, if any, to the attention of this court on the direct appeal In Delaney v. Gladden, 232 Or. 306, 308, 374 P.2d 746, cert. den., 372 U.S. 945, 83 S.Ct. 940, 9 L.Ed.2d 970, in applying ORS 138.550(2), we held that the post-conviction act was not intended to provide a second appeal and that "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by failure to make timely assertion of the right before a tribunal having jurisdiction to determine it", citing Yakus v. United States, 1944, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834, 859. The fact that the...