Lerch v. Cupp

• Decision Date: 18 May 1972
• Citation: 9 Or.App. 508,94 Adv.Sh. 1575,497 P.2d 379
• Parties: Larry Lee LERCH, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 379

497 P.2d 379

9 Or.App. 508

Larry Lee LERCH, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 2.

Argued and Submitted April 19, 1972.

Decided May 18, 1972.

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

Robert L. Misner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Solicitor Gen., Salem.

Before SCHWAB, ^* C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Petitioner was convicted in December 1969 of knowingly uttering and publishing a forged bank check. Former ORS 165.115. An order suspending execution of a three-year sentence was entered by the trial court, and petitioner was placed on probation for a period of three years. Petitioner did not appeal from the conviction. In July 1971, after a hearing in which the trial court found that petitioner had violated the terms of his probation, petitioner's probation was revoked and he was committed to the custody of the Oregon State Corrections Division.

In November 1971, nearly two years after his conviction, petitioner filed a post-conviction petition claiming that his imprisonment was illegal because he was denied his right to a speedy trial. U.S.Const. Amends. VI, XIV; Oregon Constitution, Art. I, § 10; ORS 134.510--134.530. The petition states that prior to and during his trial, petitioner unsuccessfully raised this same speedy trial contention, and that no appeal was taken from his conviction. The state demurred to the petition on the ground the facts stated were insufficient to justify exercise of jurisdiction or to authorize the relief demanded. The court sustained the demurrer and dismissed the petition. Petitioner appeals.

The position of the state is that the claimed denial of a speedy trial was properly determinable upon a direct appeal from the judgment. Thus, it contends, since the petitioner, who clearly was aware of his right to a speedy trial, declined to exercise an appeal, he may not now in a post-conviction proceeding raise the identical question which he could have had reviewed therein.

Concerning the availability of relief as affected by prior judicial proceedings, ORS 138.550 states:

'The effect of prior judicial proceedings concerning the conviction of petitioner which is challenged in his petition shall be as specified in this section and not otherwise:

'(1) The failure of petitioner to have sought appellate review of his conviction, or to have raised matters alleged in his petition at his trial, shall not affect the availability of relief under ORS 138.510 to 138.680. * * *

'(2) When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. * * *

'* * *.'

Petitioner relies strongly upon subsection (1) of ORS 138.550, asserting that it should be literally construed to permit a post-conviction hearing in all cases involving an alleged substantial denial of constitutional rights, notwithstanding the petitioner's refusal to take a direct appeal from his conviction and resolve the controversy therein. Petitioner makes no claim that his failure to appeal was due to incompetence of counsel or that his counsel, contrary to his own wishes, refused to appeal his conviction.

At the outset, we note that ORS 138.550(1) must not be construed in a vacuum but must be read with the other provisions of Oregon's Post-Conviction Relief Act. ORS 138.510--138.680. North v. Cupp, 254 Or. 451, 455, 461 P.2d 271 (1969), cert. denied 397 U.S. 1054, 90 S.Ct. 1396, 25 L.Ed.2d 670 (1970). In construing the statute, it is our duty to ascertain its policy and purpose and to consider in that connection whether or not such policy and purpose will be attained by a literal interpretation of the language used. Johnson v. Craddock, 228 Or. 308, 316--317, 365 P.2d 89 (1961); City of Portland v. Bingham, 209 Or. 575, 583--584, 307 P.2d 492 (1957); State v. Buck, 200 Or. 87, 92--93, 262 P.2d 495 (1953); Swift & Co. and Armour & Co. v. Peterson, 192 Or. 97, 108, 233 P.2d 216 (1951). See also, Wheeler v. Cupp. 3 Or.App. 1, 470 P.2d 957, Sup.Ct. review denied (1970), for a discussion of the Act and its purposes.

From the foregoing authorities it becomes clear first that the Act's provisions 'adopt substantially the rules heretofore applied in habeas corpus cases as to the effect of appeal or failure to appeal directly from the conviction;' and second, while 'postconviction relief should not permit a prisoner to raise every issue which he could have raised by appeal,' the failure to appeal should not preclude relief for those 'most obvious * * * defects' rendering 'the conviction and imprisonment thereon unconstitutional.' Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Or.L.Rev. 337, 356--57 (1960).

In Barber v. Gladden, 210 Or. 46, 298 P.2d 986 (1956), 309 P.2d 192 (1957), cert. denied 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681 (1959), it was stated:

'In Macomber v. State, 181 Or. 208, 180 P.2d 793, this court declared that normally, the extraordinary remedy of habeas corpus is not available to those who neglected to appeal. See, to like effect, Anderson ex rel. Poe v. Gladden, 205 Or. 538, 288 P.2d 823, certiorari denied 350 U.S. 974, 76 S.Ct. 451, 100 L.Ed. 845, and Alexander v. Gladden, 205 Or. 375, 288 P.2d 219. That rule is particularly pertinent with respect to plaintiff's contention that his punishment was cruel and unusual in the light of the provisions of ORS 138.050 * * *:

"* * *.'

That statute gave plaintiff the opportunity to appeal from the sentence on the identical grounds upon which his present contentions rest. The rule stated in Macomber v. State, supra, therefore, is applicable.' 210 Or. at 62--63, 309 P.2d at 195--196.

See, Barnett v. Gladden, 237 Or. 76, 84, 390 P.2d 614, cert. denied 379 U.S. 947, 85 S.Ct. 445, 13 L.Ed.2d 545 (1964); Brooks v. Gladden, 226 Or. 191, 203--204, 358 P.2d 1055, cert. denied 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263 (1961); Gibson v. State, 491 P.2d 773 (Okl.Cr.1971); Tate v. State, 489 P.2d 501 (Okl.Cr.1971); Hannon v. State, 206 Kan. 518, 479 P.2d 852 (1971); Jackson v. State, 204 Kan. 823, 465 P.2d 927 (1970).

In the recent case of Wheeler v. Cupp, supra, the defendant, after a conviction for unarmed robbery, filed a notice of appeal. While the appeal was pending, the defendant in writing directed his counsel to dismiss the appeal. This was done. He subsequently sought post-conviction relief alleging, Inter alia, the illegal use at trial of a confession and an in-custody identification obtained before he was advised of either his right to remain silent or his right to counsel. The state's demurrer to this cause of action was sustained and defendant appealed to this court. In upholding the lower court we stated:

'* * * (I)t is not enough to claim in a post-conviction proceeding that a ruling, duly objected to and preserved on appeal, was of constitutional dimension, when the direct appeal was dismissed upon the motion of his attorney made with the written consent of the defendant. We hold the petitioner must allege facts sufficient to show fraud, coercion or such gross incompetence of counsel as to amount in law to a denial of the right to counsel guaranteed by the Sixth Amendment. No such allegations were contained in the first cause of action. The demurrer was correctly sustained. Clark v. Gladden, 247 Or. 629, 432 P.2d 182 (1967); Lay v. Cupp, 1 Or.App. 296, 462 P.2d 443 (1969).' 3 Or.App. at 8, 470 P.2d at 960.

As we noted above, petitioner in the case at bar made no allegation of fraud, coercion or such gross incompetence of counsel as to amount in law to a denial of the right to counsel guaranteed by the Sixth Amendment. Petitioner did raise his speedy trial contention before and during his trial. He does not argue that his failure to appeal his conviction was the result of being uninformed of the existence of his right to a speedy trial. Indeed, from all that appears from his post-conviction petition, his failure to appeal raising this issue was the consequence of an intelligent relinquishment or abandonment of a known right. See, Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir. 1968); State v. Atherton, 242 Or. 621, 626, 410 P.2d 208, cert denied 384 U.S. 1025, 86 S.Ct. 1982, 16 L.Ed.2d 1030 (1966); Anderson v. Gladden, 234 Or. 614, 624, 383 P.2d 986 (1963), cert denied 375 U.S. 975, 84 S.Ct. 485, 11 L.Ed.2d 420 (1964); Delaney v. Gladden, 232 Or. 306, 308, 374 P.2d 746 (1962), cert denied 372 U.S. 945, 83 S.Ct. 940, 9 L.Ed.2d 970 (1963).

As a rule a defendant may not obtain collateral post-conviction relief when the issues he seeks to raise are issues...