Bryan v. Cupp

• Decision Date: 12 September 1969
• Parties: Carl Lee BRYAN, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 697

458 P.2d 697

1 Or.App. 52

Carl Lee BRYAN, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon.

Argued and Submitted July 10, 1969.

Decided Sept. 12, 1969.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Robert Y. Thornton, Atty. Gen., and Helen B. Kalil, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY, FOLEY and BRANCHFIELD, JJ.

LANGTRY, Judge.

This is an appeal from a dismissal of a post-conviction proceeding. The court sustained demurrers to a petition and an amended petition. The dismissal followed refusal to plead further.

The amended petition alleges that on September 30, 1966, Carl Lee Bryan was charged by information with the crime of burglary in Douglas County; that he waived indictment and was arraigned the same day, waived right to counsel, pleaded guilty and was sentenced. He is now serving the sentence in Oregon State Penitentiary. The petition alleges that he filed a direct appeal which was dismissed on October 10, 1966. There is nothing regarding any such appeal in the record accompanying this appeal, or in the Oregon Supreme Court records of which we take judicial notice because this case was transferred from the Supreme Court to this court pursuant to Oregon Laws 1969, ch. 198 § 15.

ORS 138.080(2) provides that the clerk of the trial court shall send a certified copy of a notice of appeal to the clerk of the Supreme Court. ORS 138.185, 19.033 and 19.108(2), read together, provide that the Supreme Court shall have jurisdiction of the appeal, except when the parties stipulate to a dismissal, in which event the trial court may make the dismissal order. In the case at bar, the demurrer stands as an admission to the allegation that a direct appeal was dismissed. Accepting this as a fact, it seems clear that the circuit court clerk omitted his duty under ORS 138.080(2). The Supreme Court did not order the direct appeal dismissed. Therefore, it appears that a direct appeal may be pending and this case is remanded to the trial court to ascertain the facts. If a direct appeal is pending, this proceeding must be dismissed.

Inasmuch as the substantive question raised on demurrer in the trial court may be an issue after the questions concerning the direct appeal are disposed of, we will rule on it in this opinion.

Bryan's connection with the crime, it is alleged, was discovered when he was arrested in Roseburg for traffic violations. His incarceration followed immediately, then the arresting officer returned to Bryan's locked car, searched it, and discovered articles stolen in a burglary. The respondent's demurrer admits that the search was unlawful.

Paragraph VIII of the amended petition alleges:

'That at no time set forth herein in connection with petitioner's conviction for burglary was petitioner represented by counsel; that neither the Circuit Judge of the State of Oregon who presided over the proceedings as set forth above nor any other person or persons whomsoever advised petitioner nor did petitioner know at the time he pleaded guilty, as aforesaid, that he had a defense to the crime of burglary, to-wit: that the property seized from the vehicle that petitioner was driving had been illegally seized and could have been excluded as inadmissible evidence had the petitioner pleaded not guilty and requested a jury trial on the merits; that had the petitioner known that said property was illegally seized, he would have requested the assistance of counsel, pleaded not guilty and filed a motion to suppress the evidence...