Hartzog v. Keeney
| Decision Date | 03 September 1986 |
| Citation | 81 Or.App. 38,724 P.2d 835 |
| Parties | Sammy R. HARTZOG, Respondent, v. J.C. KEENEY, Superintendent, Oregon State Penitentiary, Appellant. 151489; CA A37667. |
| Court | Oregon Court of Appeals |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Eric R. Johansen, Salem, argued the cause and filed the brief for respondent.
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Defendant appeals from a post-conviction judgment setting aside petitioner's guilty plea to first degree manslaughter. The court held that petitioner's attorney had provided inadequate assistance of counsel, because he had failed to advise petitioner that he could be required to serve a minimum term of imprisonment before becoming eligible for parole. The court also held that petitioner's guilty plea was not a knowing and voluntary waiver of his rights, because the trial court did not advise him of the possibility of a minimum term. We reverse and remand with instructions to dismiss the petition for post-conviction relief.
Chapel v. State of Oregon, 71 Or.App. 49, 51, 691 P.2d 514 (1984).
In Jones v. Cupp, 7 Or.App. 415, 490 P.2d 1038 (1971), rev. den. (1972), the defendant had not been advised by either his attorney or the court that he would not be eligible for parole until he served a minimum sentence of seven years. We held that pleading guilty without being informed about parole ineligibility raised no constitutional issues. We stated:
"We think the proper place to draw the line for which the court is responsible to a defendant on the advice of the basic consequences of his plea is with the information as to the maximum sentence which may be imposed." 7 Or.App. at 420, 490 P.2d 1038.
Jones is indistinguishable, and we decline petitioner's invitation to overrule it. 1
Petitioner's right to counsel under either Article I, section 11, of the Oregon Constitution or the Sixth Amendment to the United States Constitution was not violated either. To date, the Oregon Supreme Court has interpreted those provisions identically, see Lyons v. Pearce, 298 Or. 554, 566, 694 P.2d 969 (1985), and we continue to do so in this case, because the approaches taken by the United States Supreme Court and the Oregon Supreme Court are consistent and the parties have not suggested an independent interpretation of the Oregon Constitution. See State v. Smith, 70 Or.App. 675, 680, 691 P.2d 484 (1984), rev. allowed 298 Or. 704, 695 P.2d 1371 (1985).
The United States Supreme Court recently articulated a two-part test for evaluating ineffective assistance of counsel claims arising out of the plea process. The defendant must demonstrate, first, that the attorney's representation fell below an objective standard of reasonableness and, second, that the defendant was prejudiced by the attorney's error. Hill v. Lockhart, supra n. 1, 474 U.S. at ----, 106 S.Ct. at 369-371, 88 L.Ed.2d at 209-210. 2
The post-conviction trial court found that petitioner's trial attorney did not explain to him "the possibility of his receiving a mandatory minimum sentence before his change of plea." We need not decide whether that omission caused the attorney's representation to fall below an objective standard of reasonableness, because, as a matter of fact and law, petitioner was not prejudiced. He knew of the possibility of a mandatory minimum sentence. He was present at the sentencing when the state recommended that he "be sentenced to 20 years in the custody of the Oregon State Corrections Division with a mandatory minimum of 10 years," consistent with the recommendation in the presentence report, of which he was also aware. Before pronouncing sentence, the court asked defendant if there was anything he wanted to say; he declined to make a statement and made no effort to withdraw his plea.
Reversed and remanded with instructions to dismiss...
To continue reading
Request your trial
-
State v. Twitty
...right to be advised of the "basic legal consequences" of a guilty plea does not include parole ineligibility); Hartzog v. Keeney, 81 Or.App. 38, 40, 724 P.2d 835, rev. allowed 302 Or. 460, 730 P.2d 1250 (1986) (same, relying on Jones v. Cupp, supra ); see also Hill v. Lockhart, 474 U.S. 52,......
-
Hartzog v. Keeney
...court had not asked that court to resolve the dispute and that that court had not resolved the dispute. Hartzog v. Keeney, 81 Or.App. 38, 724 P.2d 835 (1986). Instead, the Court of Appeals inappropriately undertook factfinding contrary to ORS 138.650 and found that petitioner was aware of t......
-
Hartzog v. Keeney
...1250 730 P.2d 1250 302 Or. 460 Hartzog (Sammy R.) Keeney NOS. A37667, S33394 Supreme Court of Oregon DEC 23, 1986 81 Or.App. 38, 724 P.2d 835 December 23, ...