Holbert v. Gladden

Decision Date28 May 1969
Citation455 P.2d 45,253 Or. 435
PartiesDonald E. HOLBERT, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
CourtOregon Supreme Court

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause and filed a brief for appellant.

Deane S. Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

McALLISTER, Justice.

This is an appeal from an order dismissing petitioner's petition for post-conviction relief.

Petitioner was convicted of knowingly uttering and publishing a forged bank check and on February 1, 1965, was sentenced to a term of 10 years in the penitentiary. The conviction was affirmed by this court in State v. Holbert, 242 Or. 228, 408 P.2d 941 (1965).

On the same day that petitioner was sentenced for the principal offense the district attorney filed an information pursuant to the habitual criminal statute, ORS 168.015 to 168.090, alleging that petitioner had been convicted of three prior felonies. On April 26, 1966, a hearing was held on the information, the court found the allegations true, vacated the 10-year sentence and imposed a new sentence of 20 years under the habitual criminal statute.

Petitioner appealed from the enhanced sentence and the public defender was appointed to represent petitioner on the appeal. The circuit court subsequently allowed the public defender to withdraw as petitioner's attorney on appeal and the appeal was thereafter dismissed on October 11, 1966, upon the motion of the state. Petitioner then requested this court to reinstate his appeal, which request was denied.

On January 8, 1968, petitioner filed in the circuit court for Marion county a petition for post-conviction relief on the ground that he had been denied the right to counsel on his appeal as guaranteed under Article I, Section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States.

The right to counsel on appeal was firmly established in the landmark case of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). We considered at length the basis and scope of that right in Shipman v. Gladden, Or., 453 P.2d 921 and in Welch v. Gladden, Or., 453 P.2d 967 (April 30, 1969) and deem it unnecessary to repeat here what we said in those cases.

Enhanced sentences imposed under ORS 168.085 are by ORS 168.090 expressly made reviewable on appeal by this court. Although the appeal from the judgment imposing the enhanced sentence was a direct appeal, the right to counsel on appeal applies with equal force to state collateral proceedings, Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892, 897 (1963).

Douglas v. California was decided in 1963, more than three years before petitioner filed his notice of appeal from the enhanced sentence imposed in April 1966. Petitioner contends that he was deprived of his right to counsel when the public defender was permitted to withdraw as petitioner's attorney, resulting in the dismissal of the appeal. Petitioner relies on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, 498 (1967), in which the Supreme Court condemned the practice of permitting appellate counsel to withdraw on his mere representation that he could find 'no merit' in the appeal. The court said:

'The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. * * *'

It was decided in Anders that a court may permit appellate counsel to withdraw only if (1) counsel advises the court that he finds the appeal wholly frivolous and requests permission to withdraw, and (2) accompanies his request with a brief referring to anything in the record that might arguably support the appeal, and (3) the defendant is served with a copy of the brief and allowed time to respond thereto, and (4) the court then finds, after full examination, that the case is wholly frivolous. In petitioner's case the court permitted counsel to withdraw without finding that the appeal was frivolous. In so doing the court deprived petitioner of his right to the assistance of counsel and to the equal protection and due process guaranteed by the Fourteenth Amendment.

The basic right involved in this case is the right to counsel on appeal established in Douglas v. California. The Supreme Court has repeatedly held that Douglas must be applied retroactively. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1204 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); and Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5, 7 (1968). In Arsenault v. Massachusetts the court said:

'The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) (93 A.L.R.2d 733) on appeal (Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811) and at the other 'critical' stages of the criminal proceedings (Hamilton v. Alabama (368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114) supra) have all been made retroactive, since the 'denial of the right must almost invariably deny a fair trial.' * * *'

Although the Supreme Court has not said expressly that Anders should operate retroactively, it has applied Anders retroactively in Walker v. Wainwright, 387 U.S. 236, 87 S.Ct. 1708, 18 L.Ed.2d 747 (1967), a state collateral proceeding, 188 So.2d 824 (1966), and in a number of cases pending on appeal when Anders was decided. *

It is not necessary to grant a delayed appeal as we authorized in Shipman v. Gladden and Welch v. Gladden, supra. It is only necessary to reinstate petitioner's appeal from the enhanced penalty. The order entered in this court on October 11, 1966, dismissing petitioner's appeal from his enhanced sentence is vacated and the appeal is reinstated. The public defender is reappointed to represent petitioner in that proceeding.

The judgment of the court below in this proceeding is reversed.

DENECKE, Justice (specially concurring).

I concur solely upon the ground that in my opinion the United States Supreme Court in Walker v. Wainwright, 387 U.S. 236, 87 S.Ct. 1708, 18 L.Ed.2d 747 (1967), necessarily decided that the state courts must apply Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), retroactively.

O'CONNELL, Justice (dissenting).

I disagree with the majority's statement that '(t)he basic right involved in this case is the right to counsel on appeal established in Douglas v. California.' I further disagree with the conclusion that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) should be applied retrospectively. 1

Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) held that an indigent defendant was entitled under the equal protection clause of the Fourteenth Amendment to have counsel appointed to prosecute his appeal and that a review of the record by the state appellate court for errors in the trial was not a substitute for the defendant's right of counsel.

In Fox v. Oregon, 388 U.S. 466, 87 S.Ct. 2129, 18 L.Ed.2d 1324 (1967) and Elliott v. Oregon, 387 U.S. 571, 87 S.Ct. 2070, 18 L.Ed.2d 967 (1967) it was held that even where counsel is appointed to represent the indigent defendant on appeal and counsel withdraws on the ground that he regards an appeal as frivolous the procedure does not satisfy necessary constitutional safeguards. It should be noted, however, that in Fox v. Oregon and Elliott v. Oregon the United States Supreme Court vacated our earlier decisions in these cases on the basis of Anders, not upon the basis of Douglas. It is evident, therefore, that both the United States Supreme Court and the Supreme Court of Oregon have regarded Anders and not Douglas as controlling the issue raised in the present case.

Since Anders rather than Douglas is the basis of petitioner's claim, he is not entitled to relief unless Anders should be given retrospective effect. It is my opinion that it should not be given this effect.

We learn from Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) that in determining whether a rule is to operate retrospectively the court is to 'weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' 381 U.S. at 629, 85 S.Ct. at 1738. The fact that there is a likelihood of unreliability in the truth-determining process in itself is not enough to call for the retrospective application of a rule. 2

As the Court explained in Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882 (1966), the question of whether retrospective application of a principle is to be made is 'a question of probabilities' and the court 'must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.' If, after taking into account these other factors, it appears that the deprivation of the...

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4 cases
  • Teague v. Palmateer
    • United States
    • Oregon Court of Appeals
    • October 30, 2002
    ...principle should be applied retroactively. When the answer has been yes, the petitioner has prevailed. See, e.g., Holbert v. Gladden, 253 Or. 435, 437-39, 455 P.2d 45 (1969); Clawson v. Maass, 119 Or.App. 287, 291, 850 P.2d 398 (1993); Nunn v. Cupp, 10 Or.App. 528, 532, 500 P.2d 1237 (1972)......
  • Lyons v. Pearce
    • United States
    • Oregon Supreme Court
    • March 26, 1985
    ...453 P.2d 907 (1969) (holding appointed counsel to the same standard as retained counsel in perfecting an appeal) and Holbert v. Gladden, 253 Or. 435, 455 P.2d 45 (1969) (counsel's withdrawal of an appeal without a finding that the appeal was frivolous deprived petitioner of his right to eff......
  • Bouge v. Reed
    • United States
    • Oregon Supreme Court
    • November 18, 1969
    ...area of criminal or quasi-criminal procedure are to be applied retroactively is difficult to solve in a logical fashion. Holbert v. Gladden, Or., 455 P.2d 45 (1969). One clear negative guideline was stated in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966): 'We her......
  • Clawson v. Maass
    • United States
    • Oregon Court of Appeals
    • April 21, 1993
    ...on appeal had been decided in 1963 in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Holbert v. Gladden, 253 Or. 435, 455 P.2d 45 (1969), the Oregon Supreme Court held that the Anders' description of the requirements of appellate representation applied retroacti......

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