Long v. Cupp

• Decision Date: 29 July 1971
• Citation: 487 P.2d 674,6 Or.App. 289
• Parties: Wendell F. LONG, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 674

487 P.2d 674

6 Or.App. 289

Wendell F. LONG, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted May 24, 1971.

Decided July 29, 1971.

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

Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

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

SCHWAB, Chief Judge.

This is an appeal from a judgment denying post-conviction relief. The petitioner (whom the file indicates is now on parole) was a co-defendant with the defendant in State v. Romero, 1 Or.App. 217, 461 P.2d 70 (1969). We there held, in a direct appeal, that the enhanced penalty was invalid because the prosecutor did not proceed in a reasonably prompt time in compliance with ORS 168.055. The facts concerning the length of sentence and the imposition of the enhanced penalty based on the conviction of previous felonies are the same in both cases, except that Long did not appeal as did Romero. Based on the holding in Romero, if the petitioner here had made a direct appeal from the enhancement of his penalty, he may well have prevailed. ¹

The issue is whether or not he may obtain such relief through the Post-Conviction Relief Act, ORS ch. 138. A post-conviction proceeding is not the equivalent of a direct appeal. Parker v. Gladden, 245 Or. 426, 407 P.2d 246 (1965), rev'd on other grounds, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). This Act is available only in the case of that type of error covered by ORS 138.530. The pertinent provisions of ORS 138.530 are:

'(1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner:

'(a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.

'(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner's conviction.

'(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.' ²

We hold that for the following reasons the trial court properly denied post-conviction relief.

At the post-conviction hearing the petitioner argued that the delay in imposing the enhanced penalty was a violation of his constitutional rights entitling him to relief under ORS 138.530(1)(a). He has abandoned this point on appeal and properly so. All error is not constitutional error and the delay in imposing sentence which was otherwise wholly proper is not such error. State v. Custer, 240 Or. 350, 401 P.2d 402 (1965), holds that delay in the imposition of an enhanced penalty does not constitute a denial of the right to a speedy trial.

Nor were the petitioner's equal protection or due process rights violated by the delay.

In Kloss v. Gladden, 233 Or. 98, 377 P.2d 146 (1962), it was held that failure to have the defendant examined by a psychiatrist or to otherwise comply with sexual psychopath statutes before sentencing was not a denial of due process even when the statute requiring examination was mandatory.

In Brooks v. Gladden, 226 Or. 191, 358 P.2d 1055 (1961), the trial court had granted post-conviction relief to the petitioner by way of a new trial because he had not been allowed to poll the jury. The Supreme Court pointed out that ORS 17.355(2) gives the defendant an absolute right to poll the jury. It nevertheless held that while failure to allow such polling might have brought relief on appeal, such failure did not constitute constitutional error, and, therefore, afforded no basis for post-conviction relief.

Our Post-Conviction Relief Act for the most part serves the functions previously served by habeas corpus. 28 U.S.C.A. § 2255 provides in pertinent part:

'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that * * * the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.'

The United States Supreme Court has held that under this statute reversible error is not necessarily the basis for collateral challenge by habeas corpus.

In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), petitioner was convicted of violating the Selective Training and Service Act by failing to report for induction. At trial he offered evidence to show that his selective service classification was invalid. Proving this would have been a complete defense. The trial court held such evidence to be inadmissible. Subsequent to Sunal's trial, in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1945), the Supreme Court decided that trial courts should determine whether a defendant's draft classification was correct. In Sunal the court held that the defendant should have appealed and had no right to habeas corpus. The court there said:

'An endeavor is made to magnify the error in these trials to constitutional proportions by asserting that the refusal of the proffered evidence robbed the trial of vitality by depriving defendants of their only real defense. But as much might be said of many rulings during a criminal trial. Defendants received throughout an opportunity to be heard and enjoyed all procedural guaranties granted by the Constitution. Error in ruling on the question of law did not infect the trial with lack of procedural due process * * *.' 332 U.S. at 182, 67 S.Ct. at 1593.

In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), defendant was not asked, at sentencing, whether he wished to make a statement in his own behalf. This failure to ask was a violation of Federal Rules of Criminal Procedure, Rule 32(a). The court said:

'The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the redimentary demands of fair procedure. It does not present 'exceptional circumstances where the need for the remedy afforded by the writ of Habeas corpus is apparent.' * * *.' 368 U.S. at 428, 82 S.Ct. at 471.

Here, as in Hill, there was no complete miscarriage of justice, no procedural omission inconsistent with basic standards of...