Hussick v. State
Citation | 19 Or.App. 915,529 P.2d 938 |
Parties | Marvin Leroy HUSSICK, Appellant, v. STATE of Oregon, Respondent. |
Decision Date | 11 February 1975 |
Court | Oregon Court of Appeals |
Donald H. Upjohn, Salem, argued the cause for appellant. With him on the brief were Heltzel & Byers, Salem.
Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
A demurrer was sustained to petitioner's amended petition for post-conviction relief. The petition was dismissed upon his refusal to plead further and he appeals from the order dismissing the petition.
The petition for its second cause of action 1 alleges that petitioner was originally charged with second degree robbery in a one-count information. A grand jury subsequently indicted him and a co-defendant with two counts of second degree robbery arising out of the same transaction. He pleaded not guilty at arraignment, was found guilty by a jury and sentenced to three years' imprisonment on each count, the sentences to run concurrently. Petitioner alleges that his court-appointed attorney committed the following acts and omissions:
'(1) Waived the reading of the indictment at petitioner's arraignment and thereafter failed to notify him that he had been indicted on two counts of robbery so that petitioner was unaware of this crucial fact until the morning of the trial, the result of which was to deny petitioner the right to prepare an effective defense to the crimes with which he was charged.
'(2) Failed to request a severance so petitioner would not have to endure the prejudice of facing a single jury charged with more than one offense.
'(3) Failed to object to the following misstatement of law made by the prosecutor to a member of petitioner's jury panel before the full panel that eventually heard the case:
(Emphasis supplied.)
'(5) Failed to point out to the jury in final argument the many inconsistencies in the testimony of the alleged victims.'
Petitioner claims the effect of the above was to deprive him of the effective assistance of counsel in violation of the applicable provisions of the state and federal constitutions. In his third cause of action he also alleges that to sentence him on both counts of robbery in the second degree constituted impermissible multiple punishment.
The state argued that the petitioner failed to allege facts sufficient to show he was prejudiced in the criminal process and that the petition did not allege facts which showed that counsel was "so incompetent or inefficient as to make the trial a farce or mockery of justice." Benson v. Gladden, 242 Or. 132, 140, 407 P.2d 634, 638 (1965), cert. denied, 384 U.S. 908, 86 S.Ct. 1345; 16 L.Ed.2d 360 (1966). The trial court sustained the demurrer to the whole of petitioner's post-conviction amended and supplemental petition without opinion.
The demurrer admits the facts stated in the petition. Bryan v. Cupp, 1 Or.App. 52, 458 P.2d 697 (1969).
We conclude that petitioner's second cause of action sufficiently alleged, so as to require a hearing thereon, that he had received 'unreasonable (assistance of counsel) under the circumstances.' Rook v. Cupp, Or.App., 99 Adv.Sh. 1610, 1615, 526 P.2d 605, Sup.Ct. review denied (1974), and was prejudiced thereby.
In connection with the allegations of incompetency of counsel, this court in Rook v. Cupp, supra, reviewed state and federal decisions and concluded that:
"Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.' State v. Thomas, 203 S.E.2d 445, 461 (W.Va.1974).
(Footnote omitted.) 99 Adv.Sh. at 1614, 526 P.2d at 607.
Examining the allegations with respect to the Rook standard, the first specification is an allegation that counsel failed to...
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