Lay v. Cupp

• Decision Date: 12 December 1969
• Parties: James Douglas LAY, Sr., Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 443

462 P.2d 443

1 Or.App. 296

James Douglas LAY, Sr., Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 27, 1969.

Decided Dec. 12, 1969.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Peter S. Herman, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Robert Y. Thornton, Atty. Gen., and David H. Blunt, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY, FOLEY, and BRANCHFIELD, JJ.

LANGTRY, Judge.

This appeal presents one question--whether a petition under the Post-Conviction Relief Act (ORS 138.510 through 138.680), which relies upon a claimed lack of petitioner's knowledge of his constitutional rights before plea in a criminal case in which he is represented by counsel, must allege some failure by his counsel of duty to inform his of his rights in order to state a cause for relief.

The petition alleges that petitioner pleaded guilty to burglary not in a dwelling; that prior thereto he 'did not know' the maximum penalty therefor; that if he had known it to be 10 years' imprisonment he would have pleaded not guilty, and, therefore, he did not voluntarily and understandingly enter his plea. Attached to and made a part of his petition is the judgment of sentence in the case, which discloses that petitioner was represented by counsel at all stages of the proceeding. The defendant warden demurred to the petition on the ground that no cause for relief was stated. The trial court sustained the demurrer and upon petitioner's refusal to plead further the petition was dismissed.

ORS 138.580 requires the petition to 'set forth specifically the grounds upon which relief is claimed,' and ORS 138.620 places the burden of proof of such grounds upon petitioner, measured by a preponderance of the evidence.

A defendant accused of crime has a constitutional right to be advised before a guilty plea of the basic legal consequences of the plea, including the maximum penalty assessable under the charge. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Dixon v. Gladden, 250 Or. 580, 444 P.2d 11 (1968); and Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289 (1953).

'Implict * * * is the Duty of counsel to advise a defendant, Inter alia, of the consequences of his plea.' (Emphasis supplied.) 250 Or. at 586, 444 P.2d at 13.

Whether counsel did or did not perform his duty to advise of the consequences of the plea, regardless of whether it was through ignorance or mistake, is a necessary consideration. Even if it is pleaded and proved that counsel made a mistake, under Oregon's Post-Conviction Relief Act it has been held that the error may not be cause for relief. North v. Cupp, 89 Or.Adv.Sh. 703, 461 P.2d 271 (decided November 19, 1969).

Inasmuch as it is the duty of counsel to advise his client of the consequences of his plea, it will be presumed he has done so. The burden of proof is upon the petitioner. Therefore, where it affirmatively appears he had counsel he must allege and prove a failure of his counsel which justifies relief. The deficiency of the petition in this regard is not corrected by the general assertion therein that petitioner 'did not know'...