Church v. Gladden
| Decision Date | 09 September 1966 |
| Citation | 244 Or. 308,417 P.2d 993 |
| Parties | Paige E. CHURCH, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed the brief for appellant.
Wayne M. Thompson, 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, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
Petitioner, an inmate of the state penitentiary, appealed from an order of the trial court quashing his petition for post-conviction relief. The defendant's motion to quash was based on the contention that petitioner had previously prosecuted another petition for post-conviction relief in which he either raised, or should have raised, all of his present adequately-stated grounds for relief.
Petitioner was indicted for first-degree felony murder on April 18, 1961, and pleaded guilty to second-degree murder, receiving a sentence of life imprisonment. The four grounds asserted in his petition and relied on for relief in this appeal are as follows:
1. The trial court was without jurisdiction to receive petitioner's plea of guilty to second-degree murder because second-degree murder is not a lesser included crime of first-degree felony murder.
2. Petitioner's plea of guilty was involuntary by reason of coercion, duress and promises of leniency.
3. The indictment against petitioner was based solely on testimony which was legally inadmissible.
4. Petitioner made incriminating statements to police officers following his arrest without being advised of his constitutional right to counsel and to remain silent, which statements induced his subsequent plea of guilty.
ORS 138.550(3) provides in part as fllows:
'All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in his original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.'
Petitioner alleges that the first and third grounds for relief stated above were not raised in his previous post-conviction proceeding, but could not reasonably have been raised then because his court-appointed attorney failed and refused to do so, although requested to pursue such course of action by the petitioner. Petitioner also alleges that he did raise the second ground for relief in his previous post-conviction proceeding but that he was not given a fair and complete hearing on the issue because three of his witnesses were not present and did not testify, although petitioner requested his attorney to have them present and his attorney promised that he would do so. For the purposes of this opinion we will assume, without deciding, that each of the first three points raised by petitioner states an adequate ground for relief. The question is squarely raised whether petitioner has alleged sufficient reasons for failing to assert two of the present grounds for relief in his first petition, and for failing to exhaust all of his evidence on another ground at the prior hearing.
If petitioner has stated grounds for post-conviction relief which fall without the Res judicata provision of ORS 138.550(3), it is absolutely impossible that there be any finality to this type of litigation. In each successive post-conviction proceeding all a petitioner need do is allege that his attorneys in each of his previous proceedings were unfaithful to their trust, and the door is opened wide to relitigate Ad infinitum.
In our opinion petitioner has not alleged sufficient reasons to escape the application of the Res judicata provision of ORS 138.550(3). If petitioner's attorney in the first post-conviction proceeding failed to follow any legitimate request, petitioner could not sit idly by and later complain. He must inform the court at first opportunity of his attorney's failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner's request. This is not too great a burden to place upon a petitioner when the attorney's failure to follow legitimate instructions takes place in petitioner's presence. All petitioner had to do was to speak to the court during his hearing on the first petition. He had immediate access to the judge by merely raising his voice. The words of this court in Delaney v. Gladden, 232 Or. 306, 308, 374 P.2d 746, 747, cert. den. 372 U.S. 945, 83 S.Ct. 940, 9 L.Ed.2d 970 (1963), are equally applicable to the factual situation here:
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State ex rel. Hopkinson v. District Court, Teton County
...285, cert. denied 442 U.S. 932, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Kennedy v. State, Wyo., 443 P.2d 138 (1968); Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966). Endless repeating must stop. The authority for allowing a petition for post-conviction relief does not permit its use as a ......
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...Escobedo/Miranda doctrine could be raised but was not a basis for relief because doctrine was not retroactive); Church v. Gladden, 244 Or. 308, 311-13, 417 P.2d 993 (1966) (similar).3 As we explained in Myers v. Cupp, 49 Or.App. 691, 621 P.2d 579 (1980),rev. den., 290 Or. 491 (1981), whethe......
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Gutale v. State
...When a post-conviction petitioner wished to raise a claim that counsel did not, this court had outlined procedures, in Church v. Gladden , 244 Or. 308, 417 P.2d 993 (1966), for raising the claim in the first postconviction hearing and held that the petitioner could not save the claim for a ......