Delaney v. Gladden
| Decision Date | 26 September 1962 |
| Citation | 232 Or. 306,374 P.2d 746 |
| Parties | Jack R. DELANEY, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
William G. Paulus, Salem, argued the cause and filed a brief for appellant.
Harold W. Adams, 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 ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.
In 1958 plaintiff was tried in the circuit court for Clackamas county and was found guilty of assault with intent to commit rape. He appealed from that conviction and this court affirmed. State v. Delaney, 1960, 221 Or. 620, 332 P.2d 71, 351 P.2d 85. He was represented by an attorney on that appeal. In this post conviction proceeding he claims that his rights under the Fourteenth Amendment to the Federal Constitution and Article 1, § 20, of the Oregon Constitution have been violated. His post conviction petition alleged that ORS 163.270, which he was convicted of violating, is vague and indefinite and that the sentence imposed upon him was excessive. The trial court dismissed plaintiff's petition and he appeals.
ORS 138.550(2), of the Post Conviction Act, provides that no ground for relief may be alleged in a post conviction case when the petitioner had sought and obtained direct appellate review of his conviction. This limitation does not apply if the petitioner had not been represented by counsel on the direct appeal. The Post Conviction Act was not intended to provide a second appeal. The state is not obliged to provide a forum to hear and rehear cases that have already reached a lawful termination. The issues attempted to be raised in this case were just as available at the time of the direct appeal as they are now.
'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.' Yakus v. United States, 1944, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834, 859. And see a like result in cases very similar to the one at issue in People v. Davis, 1953, 415 Ill. 234, 112 N.E.2d 484, cert. den. 346 U.S. 837, 74 S.Ct. 57, 98 L.Ed. 359; People v. Dolgin, 1955, 6 Ill.2d 109, 126 N.E.2d 681, and Ciucci v. People, 1961, 21 Ill.2d 81, 171 N.E.2d 34, cert. den. 366 U.S. 952, 81 S.Ct. 1908, 6 L.Ed.2d 1245.
Plaintiff relies on Anderson v. Britton, 1957, 212 Or. 1, 318 P.2d 291, cert. den. 356 U.S. 962, 78 S.Ct. 999, 2 L.Ed.2d 1068, in his attempt to circumvent the statute and the rule just mentioned. Anderson was a habeas corpus case decided before...
To continue reading
Request your trial
-
Bogle v. State
...this court explained, would be inconsistent with the PCHA's res judicata provisions. As this court had held in Delaney v. Gladden , 232 Or. 306, 374 P.2d 746 (1962), cert. den. , 372 U.S. 945, 83 S.Ct. 940, 9 L.Ed.2d 970 (1963), with respect to ORS 138.550(2), another res judicata provision......
-
Lerch v. Cupp
...v. Gladden, 234 Or. 614, 624, 383 P.2d 986 (1963), cert denied 375 U.S. 975, 84 S.Ct. 485, 11 L.Ed.2d 420 (1964); Delaney v. Gladden, 232 Or. 306, 308, 374 P.2d 746 (1962), cert denied 372 U.S. 945, 83 S.Ct. 940, 9 L.Ed.2d 970 As a rule a defendant may not obtain collateral post-conviction ......
-
Clark v. Gladden
...S.Ct. 822, 9 L.Ed.2d 837 (1963)' It is clear, ORS 168.075 permits a collateral attack upon prior convictions, and '(i)n 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......
-
Barrett v. Peters
...to [the supreme court].” 212 Or. 1, 5, 318 P.2d 291 (1957), superseded by statute on other grounds as explained in Delaney v. Gladden , 232 Or. 306, 374 P.2d 746 (1962). But this court did not cite Anderson in Barrett v. Belleque, and for good reason. In Anderson, the petitioner had been tr......