Fletcher v. Cupp
| Decision Date | 14 April 1970 |
| Citation | 89 Adv.Sh. 927,463 P.2d 365,1 Or.App. 467 |
| Parties | Lane FLETCHER, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent. |
| Court | Oregon Court of Appeals |
J.Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Robert Y. Thornton, Atty. Gen., and David H. Blunt, Asst. Atty. Gen., Salem.
This is a post-conviction proceeding. On April 23, 1956, in Linn County, petitioner Lane Fletcher was convicted of grand larceny upon his plea of guilty and sentenced to one year in the Oregon State Penitentiary. On December 9, 1966, in Multnomah County, he was adjudged an habitual criminal because of three former felony convictions and sentenced to 20 years in the Oregon State Penitentiary. The judgment was based in part on the above mentioned 1956 grand larceny conviction. Petitioner brought this post-conviction proceeding to attack the habitual criminal judgment. He claims a violation of his constitutional rights in the 1956 proceeding, in that: (1) he was denied the right to counsel in that he did not understandingly waive that right; and (2) he was denied due process of law in that he did not voluntarily and understandingly enter his plea of guilty. At the post-conviction hearing the petitioner was the only witness called by either side and the only additional evidence introduced was the transcript of the 1956 Linn County arraignment and sentencing.
When defendant appeared before the court in the 1956 Linn County grand larceny case, he told the court he did not have money or means to hire a lawyer. The defendant was asked the following by the court:
In the post-conviction hearing, when the defendant was being questioned about the above colloquy, the following transpired:
The court was authorized to appoint an attorney for the defendant only if he was without funds and unable to obtain his own counsel. The defendant advised the court in the 1956 proceeding that he did not want an attorney and he testified in the post-conviction hearing that he had the money with which to employ his own attorney in the 1956 proceeding. His decision not to employ one cannot now be claimed by him as a denial of the right to counsel.
The petitioner's other contention is that he did not voluntarily and understandingly enter his plea of guilty.
The transcript of the 1956 proceeding discloses that the circuit judge asked the defendant no questions concerning his plea and gave the defendant no explanation of the legal consequences. This court said in Lay v. Cupp, Or.App., 462 P.2d 443, decided December 12, 1969, that
'A defendant accused of crime has a constitutional right to be advised before a guilty plea of the basic legal consequences of the plea, including the maximum penalty assessable under the charge * * *.' Citing Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), and...
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State v. Muse
...(1973); People v. Troyan, 21 Ill.App.3d 375, 315 N.E.2d 335 (1974); White v. State, 222 Kan. 709, 568 P.2d 112 (1977); Fletcher v. Cupp, 1 Or.App. 467, 463 P.2d 365 (1969). See also concurring opinion in People v. Mauch, 397 Mich. 646, 247 N.W.2d 5 Nevertheless, while Boykin may not require......
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Lyons v. Pearce, 82-12-38974
...violated. In Oregon there is a constitutional right to be advised of the basic legal consequences of a guilty plea. Fletcher v. Cupp, 1 Or.App. 467, 463 P.2d 365 (1969), rev. den. (1970). In order to determine if the failure to give certain advice to a defendant prior to his plea of guilty ......
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Jones v. Cupp
...Oregon there is a constitutional right to be advised of the basic legal consequences of a guilty plea. As we noted in Fletcher v. Cupp, 1 Or.App. 467, 463 P.2d 365 (1969), Sup.Ct. review denied (1970), quoting from Lay v. Cupp, 1 Or.App. 296, 462 P.2d 443 'A defendant accused of crime has a......
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Patton v. Cupp
...It was the petitioner's burden to prove by a preponderance of the evidence those facts alleged in his petition. Fletcher v. Cupp, 1 Or.App. 467, 463 P.2d 365 (1969), Sup.Ct. review denied (1970); ORS 138.620(2). A full review of the record indicates that the court's findings of fact are rea......