Boag v. State, 38-305
| Decision Date | 21 January 1980 |
| Docket Number | No. 38-305,38-305 |
| Citation | 44 Or.App. 99,605 P.2d 304 |
| Parties | Donald Gene BOAG, Appellant, v. STATE of Oregon, Respondent. ; CA 11235. |
| Court | Oregon Court of Appeals |
Michael J. McElligott, Hillsboro, argued the cause and filed a reply brief for appellant. Donald Gene Boag filed appellant's brief in propria persona.
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem.
Before TANZER, P. J., and THORNTON and CAMPBELL, JJ.
Petitioner appeals from an order denying post-conviction relief. Petitioner had pled guilty to driving while under the influence of intoxicants. This being his second such offense within five years, he was convicted and sentenced for committing a traffic crime. ORS 484.365. Petitioner's chief contention is that he did not knowingly, intelligently, and voluntarily enter his plea of guilty. 1
In a post-conviction proceeding, the burden is generally upon the petitioner to prove the allegations of his petition by a preponderance of the evidence. ORS 138.620(2). A waiver of constitutional rights is presumed to be involuntary. Therefore, if the record of the court of conviction is silent, a valid waiver of constitutional rights will not be found from it alone. The state must prove either a valid waiver or that petitioner had knowledge of his rights. Heuer v. Cupp, 23 Or.App. 592, 593, 543 P.2d 45 (1975). Thus, where the validity of a guilty plea is attacked in a post-conviction proceeding, it must be shown that the defendant knowingly waived his rights to trial by jury and confrontation of witnesses, and his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Raisley v. Sullivan, 8 Or.App. 332, 335, 493 P.2d 745 Rev. den. (1972); Ferren v. Cupp, 7 Or.App. 353, 490 P.2d 208 (1971) Rev. den. (1972). 2
The transcript of the petitioner's guilty plea, entered into evidence in the post-conviction hearing, reveals the following colloquy between petitioner and the conviction court:
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