Lorraine v. Gladden, Civ. No. 66-61.
| Decision Date | 14 December 1966 |
| Docket Number | Civ. No. 66-61. |
| Citation | 261 F. Supp. 909 |
| Parties | Charles Lindberg LORRAINE, #27363, Petitioner, v. C. T. GLADDEN, Warden, Oregon State Penitentiary, and Oregon State Parole Board, Respondents. |
| Court | U.S. District Court — District of Oregon |
Alan D. Gross, Salem, Or., for petitioner.
Robert Y. Thornton, Atty. Gen. for Oregon, and David H. Blunt, Asst. Atty. Gen. for Oregon, Salem, Or., for respondents.
Petitioner seeks to set aside a conviction and sentence of 25 years imprisonment imposed on July 18, 1960, by the Circuit Court of the State of Oregon for Linn County upon petitioner's plea of guilty to "assault and robbery, being armed with a dangerous weapon." After exhausting his State remedies under the Oregon Post-Conviction law and after an evidentiary hearing in this Court, petitioner was released on parole by the Oregon Parole Board. Petitioner desires to continue these proceedings in spite of the hazards of a retrial if he succeeds here. Accordingly, the Oregon State Parole Board, which has supervision over petitioner, is added as a party. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
Petitioner contends that his Federal Constitutional rights were violated because, while unrepresented, his plea of guilty was induced by the District Attorney's promised recommendation of leniency and by the threat of a mandatory life sentence, not only for him but also for a codefendant.
On July 14, 1960, a Halsey, Oregon, bank was held up by two men. A short time later, petitioner called the State Police and stated that he had been kidnapped and had been forced to drive to an outlying location by a man who had been seen coming from the bank. After a brief investigation and the arrest of Leo Eldon Harris, the other man, petitioner was arrested because the authorities did not believe his story. Petitioner and Leo Harris were both charged with assault and robbery, being armed with a dangerous weapon, which under State law carries a mandatory life sentence unless the sentencing court finds cause for leniency.
On the following morning, July 15, 1960, petitioner was brought before a State District Judge for arraignment. In the afternoon, while unrepresented by counsel, petitioner was visited several times by a county prosecutor, to whom petitioner persisted in his statements that he had been kidnapped. The prosecutor threatened to file a kidnapping charge against Harris and pointed out the hazard of a possible mandatory life penalty under Oregon law if petitioner was convicted of the pending charge. In addition, the prosecutor told petitioner that the Federal authorities were anxious to obtain custody over him and asked if he would prefer being tried locally by the State or in Portland by Federal authorities. The prosecutor promised to recommend leniency if petitioner would plead guilty. After further talks with petitioner and his codefendant, the prosecutor called the Circuit Judge and arranged for an evening court session. The prosecutor anticipated the appointment of counsel for the petitioner and arranged for the presence of a local attorney who earlier in the day had conferred with Harris.
That evening, when the Court session opened, the Circuit Judge appointed the same attorney to represent both defendants. He was the attorney whom the prosecutor had called earlier. When the appointed attorney announced that he had not talked to petitioner, the judge permitted the two defendants to talk with the attorney in the courtroom. After a conference, which took only a few minutes, each defendant waived indictment, pleaded guilty and requested an immediate sentence. The prosecutor fulfilled his promise by recommending leniency for both defendants. The Court set the sentencing for the following Monday, July 18, 1960. On that date, the fourth day after the robbery, the Judge sentenced each defendant to 25 years imprisonment.
The Constitutional right to counsel attaches at all "critical stages" of the proceedings and is not satisfied by an appointment at a time or under circumstances that preclude the effective aid of counsel. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). A perfunctory appointment and appearance of an attorney does not satisfy the Constitutional requirement that an accused be afforded the right to counsel. Turner v. State of Maryland...
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...there and at that time. The defendant is entitled to a new trial at the hands of a wholly disinterested prosecutor. See, Lorraine v. Gladden, 261 F.Supp. 909 (D.Or.1966); Anderson v. North Carolina, 221 F.Supp. 930 (W.D.N.C.1963); Young v. State, 177 So.2d 345 (Fla.App.1965); People v. Gero......
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...of counsel at the critical stage of his pleading to the indictment and, therefore, his conviction cannot stand. Accord, Lorraine v. Gladden, D.Ore.1966, 261 F.Supp. 909; Anderson v. North Carolina, W.D.N.C. 1963, 221 F.Supp. 930; see also Shupe v. Sigler, D.Neb.1964, 230 F.Supp. 601 (altern......
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