Gebhart v. Gladden

• Decision Date: 16 March 1966
• Citation: 243 Or. 145,412 P.2d 29
• Parties: Walter H. GEBHART, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 29

412 P.2d 29

243 Or. 145

Walter H. GEBHART, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 4, 1966.

Decided March 16, 1966.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed briefs for appellant.

Jack B. Schwartz, Portland, argued the cause and filed a brief for appellant as amicus curiae.

Wayne M. Thompson, 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 PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

SCHWAB, J. pro tem.

Petitioner Gebhart appeals from a judgment of dismissal following an order sustaining a demurrer to his amended petition for post-conviction relief. The petition alleges that on May 5, 1964, Gebhart pleaded guilty in the circuit court for Linn county to a charge of burglary. Imposition of sentence was suspended and he was granted probation. On August 11, 1964, upon hearing before the circuit court, his probation was revoked and he was thereupon sentenced to three years in the Oregon State Penitentiary.

The petition sets out two causes of action. The first recites that, between the time he was placed on probation and the time of revocation, he was tried in district court and found guilty of a misdemeanor. This cause of action further alleges that at the time of the misdemeanor proceedings he was indigent, was not advised of his right to counsel, did not know of his right to counsel, and was not furnished counsel. The concluding factual allegation is 'that the revocation was based solely on the petitioner's conviction in the district court.' ¹ The substance of Gebhart's contentions with regard to this cause of action is that a defendant in a misdemeanor case has the same right to counsel as the defendant in a felony case and that the misdemeanor conviction being a nullity for lack of counsel, there was no basis for revocation of probation.

His second cause of action states that in the circuit court hearing resulting in revocation and sentencing, he was not represented by counsel, was not advised of his right to court appointed counsel as an indigent, and in fact did not know of his right to counsel--that therefore the proceedings and the resultant penitentiary sentence were unconstitutional and void.

ORS 137.510, ² which authorizes courts to place persons convicted of crimes on probation, provides that the court may

(1) suspend the imposition of sentence and place the defendant on probation, or

(2) impose sentence and suspend the execution of sentence and place the defendant on probation.

ORS 137.550 provides for a summary hearing by the court for the purpose of revoking probation and causing the sentence previously imposed to be executed or, if no sentence has been previously imposed, for the imposition of any sentence which originally could have been imposed.

The United States Supreme Court has held that the defendant in a felony case is entitled to be represented by counsel at every stage of trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) applied this rule to federal court proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.id 799 (1963) extended it to state court proceedings. Federal courts have consistently held that sentencing is a stage of trial, and that counsel must therefore be available. Nunley v. United States, 283 F.2d 651 (10th Cir. 1960); Panagos v. United States, 324 F.2d 764 (10th Cir. 1963); Martin v. United States, 182 F.2d 225, 20 A.L.R.2d 1236 (5th Cir. 1950); United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224. The general rationale of these decisions is well expressed in Martin v. United States, supra, quoted in Evans v. State, Fla.App., 163 So.2d 520, 522:

"The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant's counsel at that time necessary if the constitutional requirement is to be met. There is then a real need for counsel. The advisability of an appeal must then, or shortly, be determined. Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defendant's conduct; to correct any errors or mistakes in reports of the defendants' (sic) past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty. That it is also true that such discussion sometimes has a contrary result, does not detract from the fact that the nature and possibilities of this important stage of the proceedings are such as make the absence of counsel at this time presumably prejudicial."

Even before Gideon v. Wainwright, supra, held that the Sixth Amendment right to counsel was available to defendants in state court felony proceedings, must state courts held that the defendant in a criminal case had the right to counsel at the time of sentence. See cases collected in Annotation, 20 A.L.R.2d 1240. Since that time state courts which have had occasion to pass upon the right to counsel at the 'sentencing stage' have held in the affirmative. State v. Laird, 85 N.J.Super. 170, 204 A.2d 220 (1964); Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964); People v. Sykes, 23 A.D.2d 701, 258 N.Y.S.2d 275 (1965).

We do not now decide whether a defendant has a right to counsel in a probation revocation proceeding under ORS 137.550 when sentence is imposed prior to the granting of probation and the only issue at the summary hearing is the revocation of probation.

We are here concerned only with that portion of ORS 137.550(2) which reads:

'* * * (T)he court, after summary hearing, may revoke the probation and * * *, if no sentence has been imposed, impose any sentence which originally could have been imposed.'

In such a case, by virtue of the statute, the revocation hearing and the sentencing hearing are one and the same, and therefore counsel cannot represent a defendant at...