Dixon v. Gladden

• Decision Date: 24 July 1968
• Citation: 86 Or.Adv.Sh. 1249,444 P.2d 11,250 Or. 580
• Parties: Robert George DIXON, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 11

444 P.2d 11

250 Or. 580

Robert George DIXON, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 5, 1968.

Decided July 24, 1968.

John Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem.

David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and RODMAN, JJ.

RODMAN, Justice (Pro Tempore).

This is an appeal from a judgment denying post-conviction relief. In 1963 the petitioner upon a plea of guilty to an indictment charging him with rape was sentenced, pursuant to ORS 137.111, to an indeterminate term not to exceed his natural life. He appealed from the judgment on the ground that the sentence was cruel and unusual and that the statute providing for a life sentence for certain sex offenders was unconstitutional. The judgment was affirmed. State v. Dixon, 238 Or. 121, 393 P.2d 204 (1964), citing Jensen v. Gladden, 231 Or. 141, 372 P.2d 183 (1962).

In his petition asking for post-conviction relief the petitioner contends that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States in that he did not knowingly and understandingly enter a plea of guilty to the charge. This raises a constitutional question which could not have been asserted on the direct appeal. State v. Jairl, 229 Or. 533, 368 P.2d 323 (1962). His position is that his plea was not voluntary because he did not know and was not advised by his court-appointed attorneys or the sentencing judge of the maximum penalty that could be imposed for the crime of which he was convicted.

In January 1963 the petitioner was charged with rape involving an eight-year-old child. A hearing was held at which it was determined, after psychiatric examination, that he was competent to stand trial and assist in his own defense. On March 1, 1963, he entered a plea of not guilty. On March 19, 1963, the plea of not guilty was withdrawn and a guilty plea entered. Before imposing sentence the court ordered the petitioner committed to the Oregon State Hospital for a psychiatric examination to determine if he had a mental or emotional condition predisposing him to the commission of certain sex crimes. Finding that he did, on May 16, 1963 the court sentenced the petitioner to the indeterminate life sentence provided in ORS 137.111.

At all times the petitioner had the counsel and advice of two court-appointed attorneys, one of whom had been an active member of the bar for 13 years and had represented defendants in 50 to 100 felony cases. Both were diligent in maintaining contact with the petitioner and in preparing his case. Trial had been set for March 19, 1963. Several days before that date, the senior counsel was advised by the jailor that his client was writing a confession in his jail cell. He went immediately to the jail and had a long conference with the petitioner. Dixon insisted that he was going to plead guilty despite his attorney's advice that he believed the state would probably not be able to prove penetration. The evidence in the hands of the authorities showed the presence of semen in the victim's vagina, but no tearing or bruising of that area.

The petitioner remained adamant in his desire to plead guilty and advised the attorney that 'if I didn't let him plead guilty that he would jump up in the courtroom in front of the jury and judge and say he was guilty, and he told me from the beginning he was guilty and he had written a confession and he wanted it delivered to the District Attorney.' During that conference he told the petitioner that he would receive a 20 or 30-year sentence if he were convicted or plead guilty. On another occasion he advised the defendant that, '* * * he was going to the penitentiary for a long, long time if he pleaded guilty.' On the morning set for trial the attorney again attempted to dissuade Dixon from entering a plea of guilty.

This attorney was unable to recall that he had ever specifically advised Dixon that he could receive a life sentence. The other court-appointed attorney was unavailable as a witness at the post-conviction hearing.

At the time of sentencing, there was a colloquy between court and counsel in the presence of the defendant in which it was stated that the maximum sentence for the offense was life imprisonment. Thereafter, the court inquired of him whether he had anything to say before imposition of sentence, and he said, 'Only that I have faith that psychiatry can help me.'

In Semmes v. Williard, 247 Or. 583, 431 P.2d 844 (1967), the petitioner argued that he did not knowingly and intelligently enter his plea of guilty because he did not know the full penalty that could be assessed. He had been sentenced to the Oregon State Correctional Institution for a term of three years for the offense of robbery by putting in fear, not being armed with a dangerous weapon. The maximum penalty provided by law was 15 years. Shortly before sentence, he had been sentenced by another court to a term of seven years in the Oregon State Correctional Institution for a separate offense of robbery by putting in fear, not being armed with a dangerous weapon. We held there that since he knew he could be sentenced to at least seven years' incarceration it was immaterial whether he knew the full penalty provided by law for the crime. Semmes was not represented by counsel. In the case at bar we have the question of whether a guilty plea is proof against constitutional attack where the defendant was unaware, before entering his plea, of the maximum penalty and thereafter the maximum penalty was imposed.

In Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289 (1953), we said that the general rule concerning the validity of a guilty plea is:

"A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion. promises, inadvertence, or ignorance * * *.' 14 Am.Jur., Criminal Law, § 270'.

In that same case the court said, in connection with waiver of indictment:

'Although courts are reluctant to find that fundamental constitutional rights have been waived, it is nevertheless the rule that such rights may be waived. Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99. But the waiver to be valid must not be the product of duress or misrepresentation. It must be voluntary and must be understandingly made with knowledge by the party of his rights. In this connection the age, education, experience, mental capacity, the nature of the charge, whether complicated or simple, the possible defenses available and other relevant circumstances will be considered if the case be taken to a federal court and should be considered in the state court if conflicts and intolerable delays are to be avoided * * *.' 197 Or. at 321, 251 P.2d at 104.

In State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961), this court held that it is not error to refuse leave to withdraw a guilty plea if the defendant fully understood his rights, the nature of the charge against him, and the consequences of such a plea.

A plea of guilty cannot be said to be understandingly made if the defendant does not know the legal consequences of such a plea. Included among these consequences is the maximum sentence that can be imposed. Kotz v. United States, 353 F.2d 312 (8th Cir. 1965); Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Huffman v. Alexander, supra; State v. Burnett, supra; Com. ex rel West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966); In re Woods v. Rhay, 68 Wash.2d 601, 414 P.2d 601, cert. den., 385 U.S. 905, 87 S.Ct. 215, 17 L.Ed.2d 135 (1966).

In Von Moltke v. Gillies, supra, the United States Supreme Court, in discussing waiver of counsel, said:

'* * * To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishment thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.' 332 U.S. at 724, 68 S.Ct. at 323.

Implicit in the above statement is the duty of counsel to advise a defendant, Inter alia, of the consequences of his plea.

In a number of jurisdictions the duty is imposed on the court by constitutional provision, statute or court rule to determine affirmatively in open court that the defendant voluntarily enters his plea with full understanding of the consequences. ¹ Rule 11 of the Federal Rules of Criminal Procedure provides:

'A defendant may plead not guilty, guilty or, with the consent of the court, Nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of Nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the...