Gage v. Maass

• Decision Date: 26 July 1988
• Docket Number: C-12030
• Citation: 306 Or. 196,759 P.2d 1049
• Parties: Richard GAGE, Petitioner on Review, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent on Review. TC 86-; CA A43049; SC S34329.
• Court: Oregon Supreme Court

Page 1049

759 P.2d 1049

306 Or. 196

Richard GAGE, Petitioner on Review, v. Manfred MAASS, Superintendent, Oregon State Penitentiary,

Respondent on Review.

TC 86-C-12030; CA A43049; SC S34329.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Dec. 1, 1987.

Decided July 26, 1988.

Mark J. Geiger, Salem, argued the cause and filed the petition for petitioner on review.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

LENT, Justice.

The immediate issue is whether habeas corpus is the proper means for an imprisoned felon to enforce his right to receive credit for time served in jail prior to his transfer from custody of the sheriff to custody of the Corrections Division pursuant to sentence where the felon has failed to show whether or not the sheriff has certified the time served. ¹ We hold that it is not the proper means.

The record also presents questions about proper procedure in habeas corpus proceedings in the two kinds of cases described in Penrod/Brown v. Cupp, 283 Or. 21, 28, 581 P.2d 934 (1978):

"In summary, we conclude that the writ remains available to bring before a court the two kinds of cases we have described: (1) When a petition makes allegations which, if true, show that the prisoner, though validly in custody, is subjected to a further 'imprisonment or restraint' of his person that would be unlawful if not justified to the court, and (2) when a petition alleges other deprivations of a prisoner's legal rights of a kind which, if true, would require immediate judicial scrutiny, if it also appears to the court that no other timely remedy is available to the prisoner."

Proceeding pro se, plaintiff filed a petition for a writ of habeas corpus, alleging:

"The imprisonment, incarceration, custody and restraint to the best of plaintiff's knowledge and belief is unlawful, and the illegality thereof consists of the following: I am being denied credit for 210 days time served which is dening [sic] my liberty interests."

Simultaneously, he filed a motion and affidavit to proceed in forma pauperis and for appointment of counsel. The court allowed both motions. The court ordered that a writ of habeas corpus issue.

A writ was issued October 22, 1986, commanding defendant to have the body of plaintiff before the court on November 5, 1986. The sheriff's return shows service of the writ on October 28, 1986.

A journal entry shows that plaintiff and his appointed counsel appeared before the court on November 7, 1986, as did defendant through his counsel, an Assistant Attorney General. The journal entry states that a return was filed and that a replication was due in two weeks. The entry also noted the case for pretrial conference on January 5, 1987.

Among other things, the return showed that defendant's custody of plaintiff was by virtue of:

"1. Upon conviction of Theft I and subsequent revocation of probation in State v. Gage, Multnomah County Case No. C-8303-31194, a sentence of five (5) years imposed July 18, 1984.

"2. Upon conviction of Robbery I in State v. Gage, Multnomah County Case No. 84-03-31366, a sentence of ten (10) years imposed July 19, 1984.

"3. Upon conviction of Robbery I in State v. Gage, Clackamas County Case No. 84-414, a sentence of ten (10) years imposed October 10, 1984.

"4. Upon conviction of Ex-Convict in Possession of a Firearm in State v. Gage, Multnomah County Case No. C86-05-32248, a sentence of five (5) years imposed June 25, 1986." ²

By replication filed November 20, 1986, plaintiff alleged that his imprisonment and restraint were illegal because:

"Petitioner has been, and continues to be denied credit for time served prior to delivery to the Oregon State Penitentiary Correctional Institution, in violation of ORS 137.310." ³ On December 2, 1986, defendant filed a motion

" * * * for an order dismissing petitioner's Petition for Writ of Habeas Corpus on file herein pursuant to ORCP 21(A)(8) [sic] on the ground that the pleading fails to state ultimate facts sufficient to constitute a claim."

The motion to dismiss was predicated on the failure of the petition to allege that the sheriff had certified to the Corrections Division the number of days served prior to delivery to the Division. That being so, argued defendant, there could be no way in which the Division could give credit under ORS 137.370 for the time spent in the county jail before delivery to the Division. ⁴

By order dated January 28, 1987, the court allowed the motion to dismiss and further ordered "that petitioner's Petition for Writ of Habeas Corpus be, and hereby is, dismissed." Accordingly, the court gave judgment for defendant.

Plaintiff timely appealed, and the Court of Appeals affirmed without opinion. Gage v. Maass, 86 Or.App. 363, 739 P.2d 75 (1987).

In the trial court plaintiff questioned the applicability of the Oregon Rules of Civil Procedure (ORCP). ORCP 1 A provides:

"These rules govern procedure and practice in all circuit and district courts of this state * * * for all civil actions and special proceedings whether cognizable as cases at law, in equity, or of statutory origin except where a different procedure is specified by statute or rule. * * * "

In this court both parties assert that the ORCP applies to habeas corpus proceedings, but plaintiff contends that the applicability is circumscribed by ORS 34.680, and defendant contends that although ORS 34.680 governs, there is no conflict between the statute and ORCP 1 A. ORS 34.680 provides:

"The plaintiff may move to strike the return, or the defendant may move to strike any new matter set forth in the replication of the plaintiff, or by proof controvert the same, as upon a direct denial or avoidance. The pleadings shall be made within such time as the court or judge shall direct, and they shall be construed and have the same effect as in an action."

We agree that if there were a conflict between ORS 34.680 and the ORCP, the statute would govern.

Relying on ORCP 21 A(8), defendant moved to dismiss the petition for a writ of habeas corpus. This rule provides:

"[T]he following defenses may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim, * * *."

In an ordinary civil proceeding that is initiated by petition, this motion may be employed to test the sufficiency of the petition, but for the reasons set forth below, it is not so employable in habeas corpus proceedings.

ORS 34.370 provides:

"The court or judge to whom the petition [for a writ of habeas corpus] is presented must allow the writ without delay, unless it appears from the petition itself, or from the documents annexed thereto, that the person for whose relief it is intended is by the provisions of ORS 34.310 to 34.730 prohibited from prosecuting the writ. * * *" ⁵ In the order he signed on October 22, 1986, the trial judge found from the allegations of the petition "that grounds exist for this Court to inquire into the legality of the imprisonment or restraint of named Petitioner, presently in the custody of the Respondent * * *." So finding, the trial court ordered issuance of the writ. The writ was issued and served. To the writ defendant made his return, and thereafter plaintiff filed a replication.

When the writ issued, the petition ceased to have any function. As this court stated in State ex rel. Sorensen v. Baird, 201 Or. 240, 247-48, 269 P.2d 535 (1954):

"The function of a petition for a writ of habeas corpus is to secure the issuance of the writ, and when that is issued, the petition has accomplished its purpose. Generally, the petition is not considered as part of the pleadings. Of course, there are cases where, upon stipulation of the parties, the petition is treated as the answer or traverse to the return to the writ, and, in such instances, it does form a part of the pleadings. However, ordinarily, upon the issuance of the writ, the petition becomes functus officio. The return to the writ is the principal pleading and corresponds to the complaint in civil actions. Strict rules of pleading are not usually applied to petitions for writs of habeas corpus, and often the writ is issued upon more or less informal applications. In proper cases, it should never be denied upon mere technicalities of pleading. The petition in the instant case was amply sufficient to demand the issuance of the writ. Quinn v. Hanks, 192 Or 254, 268, 233 P2d 767; In re Davenport, 114 Or 650, 655, 236 P 758; 39 CJS 625, Habeas corpus; § 80, p 651; § 88." ⁶

By the time the motion was filed, the only pleadings were the return and the replication. The motion directed against the petition was not proper and should not have been entertained. ⁷

Plaintiff did not, however, resist the motion on this basis. The procedure that was here followed does not bring into question the jurisdiction of either the Court of Appeals or this court. For guidance in future cases, we have noted the error in proceeding in the manner here employed in the trial court, but we are not disposed to have the decision at this level turn on that error because, in all the circumstances, it was harmless error.

We come now to the issue posed at the outset of this opinion. We agree with defendant that although it is the responsibility of the Department of Corrections ⁸ under ORS 137.320(3) and 137.370(2)(a) to give credit for time served after arrest for the crime for which sentence was imposed, this responsibility does not arise until the sheriff who may have had the arrestee confined has complied with the sheriff's statutory duty under ORS 137.320. That is what the statutes provide, and we perceive no reason for concluding that they do not mean what they say.

That being so, plaintiff is not entitled at this point to have the Department of Corrections or defendant credit any time served in jail against his sentence.

The foregoing discussion assumes that the sheriff in question has...