Guse v. Gladden

• Decision Date: 11 May 1966
• Citation: 243 Or. 406,414 P.2d 317
• Parties: Joseph F. GUSE, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 317

414 P.2d 317

243 Or. 406

Joseph F. GUSE, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 1, 1966.

Decided May 11, 1966.

Gary D. Babcock, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Lawrence A. Aschenbrenner, Public Defender, Salem.

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, Justice pro tem.

This is an appeal from a judgment denying post-conviction relief. In 1963 petitioner Guse was convicted of burglary and on May 13, 1964 we affirmed the conviction. State v. Guse, 237 Or. 479, 392 P.2d 257. In the course of the trial which resulted in his conviction, a confession which he had given to police officers after he was arrested was introduced into evidence. It is conceded that the officers who obtained the confession did not advise him of his right to counsel or right to remain silent.

The issue is whether the rule of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) has retroaction sufficient to encompass Guse's conviction. The defendant argues that Escobedo is not retroactive and therefore its benefits are not available to Guse in connection with his collateral proceedings for relief under the post-conviction statutes.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and the Escobedo case hold that the Fourteenth Amendment to the United States Constitution requires that evidence obtained in violation of the Fourth and Fifth Amendments respectively be excluded not only in federal but also in state criminal proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 holds that the federal constitution requires that indigent defendants have the right to counsel in all stages of felony trials in state as well as federal courts. We are required to follow the doctrine of Mapp, Escobedo and Gideon. The Gideon doctrine is retroactive without limitation. ¹ We follow that rule.

In Linkletter v. Walker, supra, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the United States Supreme Court set forth a specific formula of limited retroaction to be applied to the exclusionary rule established by Mapp. The United States Supreme Court has not yet had occasion to determine whether the exclusionary rule of Escobedo shall be subject to limited retroaction as is the Mapp rule, subject to retroaction without limit as is the Gideon rule, or subject to some other standard.

When Elliott v. Gladden, 82 Or.Adv.Sh. 335, 411 P.2d 287 came before us it was necessary that we attempt to anticipate what the United States Supreme Court's ruling re retroactivity would be as to the Escobedo rule. We there decided that logically the Linkletter principle of limited retroaction should apply to the Escobedo rule.

Turning to the Linkletter case we find that Victor Linkletter was convicted of burglary in Louisiana on May 28, 1959. The trial court considered and rejected the claim that evidence admitted against him was unlawfully seized, and the conviction was affirmed by the Supreme Court of Louisiana in February of 1960. Immediately after the United States Supreme Court decided the Mapp case on June 19, 1961, Linkletter sought habeas corpus relief. The United States Supreme Court affirmed the lower court's denial of relief to Linkletter, saying that only limited retroaction should be applied to the Mapp rule. In reaching its decision the Supreme Court said:

'* * * (W)e are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.' 381 U.S. at 622, 85 S.Ct. at 1734.

The court then defined 'final' in a footnote reading:

'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before the decision in Mapp v. Ohio.' 381 U.S. at 622, 85 S.Ct. at 1734.

The fact that the United States Supreme Court used the technique of defining the word 'final' in a footnote makes the definition no less meaningful than if it were in the body of the opinion.

In People v. Polk, 47 Cal.Rptr. 1, 406 P.2d 641 (1965) the California Supreme Court, in applying the Linkletter principle of limited retroaction to the exclusionary rule of Escobedo as we did in the Elliott case, was faced with the precise question presented in the case at bar. It held, and in our opinion correctly, that the benefits of the Escobedo rule were available to the defendant in Polk, because his conviction had been affirmed by the California Supreme Court less than 90 days prior to the date on which the United States Supreme Court decided the Escobedo case, saying:

'* * * The judgment on the issue of guilt was affirmed on March 31, 1964. (People v. Polk, 61 Cal.2d 217, 37 Cal.Rptr. 753, 390 P.2d 641.) Within the 90 days thereafter in which defendants could have applied for certiorari (see 28 U.S.C. § 2101(d); rule 22, Rules of the United States Supreme Court), on June 22, 1964, the United States Supreme Court decided the Escobedo case. Thus the judgment on the issue of guilt was not final at the time of Escobedo, since the United States Supreme Court has stated that '(b)y final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed * * *.' (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1734, fn. 5, 14 L.Ed.2d 601.)' (Emphasis supplied.) 47 Cal.Rptr. at p. 4, 406 P.2d at p. 644.

The Oregon State Bar Committee in its Continuing Legal Education Handbook has similarly interpreted Linkletter.

'* * * The U.S. Supreme Court held that the Mapp ruling did not apply to state-court convictions which had become 'final,' meaning that the judgment of conviction had been rendered and the availability of appeal exhausted And the time for petition for certiorari to the United States Supreme Court elapsed before the decision of Mapp on June 19, 1961.' Oregon Criminal Law Handbook, Part IV--Constitutional Questions, ch. 21, § 21.25, Carl R. Neil, Right to Counsel (1965). (Emphasis supplied.)

Elliott v. Gladden, supra, is consistent with the California court's interpretation of Linkletter in People v. Polk, supra. Elliott exhausted his state remedies almost a year before the date of the Escobedo decision. In holding, 'we will not give Neely (State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482) and...