Clark v. Gladden

• Decision Date: 04 October 1967
• Citation: 247 Or. 629,432 P.2d 182
• Parties: Willard Lee CLARK, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 182

432 P.2d 182

247 Or. 629

Willard Lee CLARK, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 4, 1967.

Decided Oct. 4, 1967.

Gary D. Babcock, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem.

Helen B. Kalil, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

GOODWIN, Justice.

A prisoner serving an enhanced sentence as a habitual criminal appeals from a judgment which denied postconviction relief. The court sustained a demurrer to a petition alleging that the Missouri, Oklahoma, and Texas convictions which the sentencing court had considered in applying the Oregon recidivist law were invalid because of denial of counsel and other constitutional defects.

As a preliminary question, we must decide whether the prisoner has lost his right to challenge his foreign convictions by not raising his questions at the hearing in which he was found to be a habitual criminal.

When the prisoner appeared for resentencing under ORS 168.015 to 168.085, he did not see fit to challenge any of his foreign convictions. Five foreign convictions were alleged against him, and he admitted that he had been convicted in each of the cases. He was represented by counsel at the time of the hearing, and counsel raised no question concerning alleged constitutional deficiencies. The state now argues that by failing to raise the constitutional questions at the time of his sentencing under ORS 168.085 and by failing to appeal he waived his right to raise these questions at a later time. While it would have been better procedure to have made a timely objection in the court which was considering the prisoner's status as a habitual criminal instead of bringing these new proceedings before another circuit court, the question of waiver is controlled by statute.

The only statutory provision concerning a waiver of defenses to former convictions is the following:

ORS 168.075. 'Unless the proof shows the exception of a former conviction under subsection (1) or (4) of ORS 168.015, the defendant waives the exception by failure to claim it at the hearing on the allegations of the information.'

The two subsections referred to provide:

ORS 168.015. '(1) 'Conviction' means an adjudication of guilt upon a plea, verdict or finding in a criminal proceeding in a court of competent jurisdiction, but 'conviction' does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.

'* * *

'(4) Except under ORS 166.230 and 167.050, a conviction is not a 'former conviction of a felony' if:

'(a) The offense was committed when the defendant was under 16 years of age;

'(b) That conviction was rendered after the commission of the principal felony;

'(c) It is the defendant's most recent conviction described in subsection (3) of this section, and the defendant was finally and unconditionally discharged from all resulting imprisonment, probation or parole more than seven years before the commission of the principal felony; or

'(d) That conviction was by court-martial of an offense denounced only by law and triable only by court-martial.'

The statutory language relevant to this case is that of the definition of a 'conviction' which excludes 'an adjudication which has been expunged by pardon, reversed, set aside, or otherwise rendered nugatory.' The prisoner would have us construe the words 'or otherwise rendered nugatory' as meaning 'or otherwise adjudicated to be nugatory.' The state apparently would have us read the words as meaning 'or otherwise deemed nugatory.'

Difficulty of the kind created by the ambiguity in our statute has been obviated in New York by a specific amendment in 1964, which reads:

'* * * provided however, that no previous conviction in this or any other state shall be utilized as a predicate for multiple offender treatment pursuant to * * * this article if such conviction was obtained in violation of the rights of the person accused under the applicable provisions of the constitution of the United States.

'An objection that a previous conviction was unconstitutionally obtained may be raised at this time and the court shall so inform the person accused. Such an objection shall be entered in the record and shall be determined by the court, without empanelling a jury. The failure of the person accused to challenge the previous conviction in the manner provided herein shall constitute a waiver on his part of any allegation of unconstitutionality unless good cause be shown for his failure to make timely challenge * * *.' N.Y.Sess.Laws 1964, ch. 446, § 1.

Until our Legislative Assembly provides such clear statutory direction as has been provided in New York, we construe our present statutory language 'or otherwise rendered nugatory,' in light of the terms 'has been' 'expunged,' 'reversed,' and 'set aside,' as requiring an accomplished act to relieve the prisoner of the unconstitutional judgment. The alternative would be to disregard the words 'has been,' and hold that the mere failure of the prisoner to challenge a former conviction on grounds other than those spelled out in ORS 168.015(1) and (4) is itself a waiver of the right to raise such questions. Since such an intent could have been expressed in a very few words, and was not, we do not believe such an intent can be inferred. Our construction of the statutory language is fortified by the fact that our Legislative Assembly has provided elsewhere in the code a comprehensive postconviction remedy which, on its face, appears to apply to the kind of problem now before us.

Under ORS 138.510(1) ¹ a prisoner has statutory right, however tardily he may act, to petition for redress of constitutional grievances so long as the questions presented were not actually decided in his former proceedings nor otherwise barred by express terms of the statute. See ORS 138.550(1), (2). ²

The language of ORS 138.510 restricting postconviction relief to persons 'convicted of a crime under the laws of this state' likewise does not bar this prisoner. The principal conviction which started the chain of events leading to the present sentence was an Oregon conviction for burglary. This is a conviction within the meaning of ORS 138.510(1). While the principal conviction is not being challenged on the issue of guilt or innocence, the sentence ultimately entered as the result thereof is being challenged. Subsection (c) of ORS 138.530 (1) specifically makes the unconstitutionality of a sentence a ground for postconviction relief.

While the Oregon postconviction statute does not, in so many words, say that the unconstitutionality of foreign judgments can be reached in proceedings brought under the statute, there is no reason for denying relief when such judgments are by Oregon law allowed to affect Oregon sentences. See Collins and Neil, The Oregon Postconviction Hearing Act, 39 Or.L.Rev. 337, 345 (1960). In Minnesota, where there was no postconviction statute, the court reached the same result by shaping habeas corpus to fit the situation. See State ex rel. Holm v. Tahash, 272 Minn. 466, 139 N.W.2d 161 (1965).

The next question is whether the courts of this state should entertain collateral attacks upon the judgments of conviction entered in the courts of other states, and if so the extent to which such judgments may be re-examined. As noted, New York has settled the question by statute.

The full-faith-and-credit clause of Article IV, § 1, of the United States Constitution is not offended by a properly limited collateral attack. No state is required to take notice of foreign convictions in sentencing those who violate its own criminal laws. Each state is free to give foreign convictions such force as it deems proper in the administration of local sentencing policy. The courts of each state must determine which convictions meet constitutional standards in carrying out the legislative policy of their own recidivist laws. Thus, while a challenge to a foreign conviction in a local sentencing proceeding may take the form of a collateral attack, there is no constitutional reason for disallowing such an attack. See, e.g., People v. Coffey, Cal., 60 Cal.Rptr. 457, 430 P.2d 15 (1967); In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913 (1966); State v. Dalrymple, 75 N.M. 514, 407 P.2d 356 (1965); United States ex rel. LaNear v. LaVallee, 306 F.2d 417 (2d Cir. 1962). See also cases noted in Norton, Gideon and the Habitual Criminal Statutes, 6 Washburn L.J. 24 (1966).

An Oregon convict, therefore, may, when charged under ORS 168.055 with being habitual criminal, allege constitutional defects and thereby call into question one or more of his prior convictions.

If his allegations meet Oregon standards of legal sufficiency, and if his allegations are admitted or proven, the sentencing court will disregard the convictions thereby found to be constitutionally defective. See Oyler v. Boles, 368 U.S. 448, 32 S.Ct. 501, 7 L.Ed.2d 446 (1962).

There is no reason for treating a foreign conviction differently than an Oregon conviction in carrying out Oregon sentencing policies. The substantive question in either case is whether the former conviction being called into question is one that ought to be considered as a part of the criminal history of the prisoner for our own sentencing purposes.

Some courts have taken the position that a state which chooses to employ foreign convictions as part of its sentencing scheme should be prepared in every case to support the constitutionality of the foreign convictions against any challenge that might be asserted, regardless of the character of the alleged defect, the difficulty of proof, or...