Lyons v. Pearce
| Decision Date | 26 March 1985 |
| Citation | 298 Or. 554,694 P.2d 969 |
| Parties | Louis LYONS, Respondent on Review/Petitioner on Review, v. Fred PEARCE, the official in charge of Rocky Butte Jail, Petitioner on Review/Respondent on Review. TC C82-12-38974; CA A27171; SC S30519; S30602. |
| Court | Oregon Supreme Court |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for petitioner on review/respondent on review. With him on the brief was Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Clint A. Lonergan, Portland, argued the cause, for respondent on review/petitioner on review. With him on the brief were Howard R. Lonergan and Richard L. Lonergan, Portland.
In this post-conviction case there are two issues: whether petitioner's guilty plea was knowing and voluntary, and whether petitioner was denied effective assistance of counsel. ORS 138.530 provides:
The Court of Appeals held that the trial court's failure personally to advise defendant that a conviction could result in deportation did not violate either the state or federal constitution but remanded the case for the trial court to address the claim of the denial of effective assistance of counsel, 66 Or.App. 777, 676 P.2d 905 (1984). 1 We affirm the Court of Appeals on the first point but conclude that there was a denial of effective assistance of counsel. 2
Petitioner pleaded guilty to the charge of theft of unemployment benefits. ORS 164.055. Petitioner had previously been convicted of assault in the second degree as the result of a stipulated facts trial. Petitioner is an alien and a citizen of Jamaica, and because of his conviction he faces possible deportation. 8 U.S.C. § 1251(a)(4). 3 He did not appeal from the conviction.
Prior to the entry of the guilty plea, the trial judge asked petitioner if he had read the petition to enter a plea of guilty. Petitioner said he had not. The court asked him if he could read. He said yes. The court then instructed him to read the petition and confer with his counsel. Included in the petition was this statement:
After a recess, the following exchange occurred between the court and petitioner.
The court then accepted petitioner's guilty plea. The United States Immigration Department later began deportation proceedings.
At the post-conviction hearing, petitioner testified that when he signed the plea petition and entered the guilty plea he did not know his conviction could result in deportation. He also testified that he had not read the plea petition and that his counsel had not discussed with him the possibility of deportation. The latter was confirmed by the testimony of the attorney as well as by the attorney's failure to ask the sentencing judge for a recommendation against deportation. 4 Petitioner contends that the failure of the court orally to advise him of the possibility of deportation, and the failure of his attorney to so inform him, violated his rights under Article I, sections 10 and 11, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution because his plea was not knowingly, intelligently and voluntarily made. He charges that the judge and his attorney failed to comply with applicable statutes and therefore violated his constitutional rights.
There are two ways by which a criminal defendant's guilt may be established so that the deprivation of his liberty will comport with due process of law. The first is by trial in which the state has proved the elements of the crime beyond a reasonable doubt. A defendant may waive a jury trial and be tried by the court. The trial must be conducted in accordance with the procedures enumerated in other constitutional provisions that a defendant in a "criminal case" or a "criminal prosecution" is due. The second is by the defendant's own admission that he is guilty of the charged offense. Henderson v. Morgan, 426 U.S. 637, 647-48, 96 S.Ct. 2253, 2258-59, 49 L.Ed.2d 108 (1976) (White, J., concurring). This plea of guilty is a waiver of, among other constitutional rights, the privilege against self-incrimination, the right to a jury trial and the right to confront one's accusers.
Guilty pleas implicate both the Fifth and Sixth Amendments of the federal constitution 5 and for this reason the United States Supreme Court has required that guilty pleas be voluntary and made with knowledge of the consequences, Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). The Fourteenth Amendment makes this minimum standard applicable to the states. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A plea of guilty also requires waiver of state constitutional rights embodied in Article I, sections 11 and 12, of the Oregon Constitution. 6
We have examined in other contexts the adequacy of a defendant's waiver of state constitutional rights. See State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983); State v. Mains, 295 Or. 640, 669 P.2d 1112 (1983); State ex rel. Russell v. Jones, 293 Or. 312, 647 P.2d 904 (1982). We have required that a defendant understand the rights he is waiving and that he waive them free from coercion. The advice of counsel plays a significant role in aiding a defendant in the decision. See State v. Sparklin, supra.
Guilty pleas are regulated by statute. ORS 135.385(1) and (2)(d) provide:
ORS 135.385 was enacted in 1973, Oregon Laws 1973, chapter 836, section 167, and was modeled on ABA Standards § 1.4 and Boykin v. Alabama, supra. Commentary to Proposed Oregon Criminal Code § 260 (1972). Subsection (2)(d) was added in Oregon Laws 1979, chapter 118, section 1.
Subsection (1) requires the court to address the defendant personally and determine that the defendant understands the nature of the charge. Subsection (2) requires the court to inform a defendant, among other things, that if he is not a citizen of the United States the conviction of a crime may result in deportation.
The court met the statutory obligation when it recessed the proceeding to allow petitioner the opportunity to read the plea agreement and to consult with counsel. Petitioner's failure to read the plea agreement cannot now be used to claim that his plea was uninformed and involuntary. We hold that ORS 135.385(2)(d) does not require the trial court to address a defendant orally about the possibility of deportation. It is sufficient if the court satisfies itself that a defendant has been so informed. Petitioner here told the court that he could read and that he had, in fact, read the plea agreement containing the information regarding possible deportation and that he had, in fact, conferred with counsel. No more was required of the court.
Petitioner asserts that written notice of the specter of deportation is constitutionally insufficient and that the judge must inform defendants orally of this possible consequence of a judgment of conviction. Petitioner then cites to Article I, sections 10 and 11, of the Oregon Constitution. Although no argument is articulated, petitioner's apparent assertion is that Article I, section 10, is a due process clause and it mandates a higher standard of waiver of criminal procedure rights than the Fourteenth Amendment to the United States Constitution.
We have held that "Article I, section 10 of the Oregon Constitution which guarantees that 'every man shall have remedy by due course of law for injury done him in his person, property or reputation,' is neither in text nor in historical function the equivalent of a due process clause * * *," Cole v. Dept. of Rev., 294 Or. 188, 191, 655 P.2d 171 (1982); see also State v. Burrow, 293 Or. 691, 695, n. 5, 653 P.2d 226 (1982). In any case, standards for an adequate waiver of state...
To continue reading
Request your trial
-
Downs-Morgan v. U.S.
...v. Holton, 228 F.2d 827, 830 (7th Cir.), cert. denied, 351 U.S. 963, 76 S.Ct. 1027, 100 L.Ed. 1484 (1956); Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 973-76 (1985) (en banc); Tafoya v. State, 500 P.2d 247, 249-51 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (197......
-
Perez v. Cain
...state of the law with respect to petitioner's claim between 1999 and 2001. Chavez , 364 Or. at 659-61, 438 P.3d 381. In Lyons v. Pearce , 298 Or. 554, 694 P.2d 969 (1985), we had held, under the Oregon Constitution, that a defense attorney has a duty to advise noncitizen clients that a guil......
-
Chavez v. State
...United States citizens that a guilty plea "may result" in deportation and other adverse immigration consequences. Lyons v. Pearce , 298 Or. 554, 567, 694 P.2d 969 (1985). In 2006, this court reaffirmed Lyons . Gonzalez , 340 Or. at 459, 134 P.3d 955.1 Specifically, it considered and rejecte......
-
People v. Quesada
...980.) This same analysis has been applied by other courts construing comparable legislation. Thus, for example, in Lyons v. Pearce (1985) 298 Or. 554, 561, 694 P.2d 969, 974, the Oregon statute required that the "court shall inform the defendant" of the immigration consequences of a guilty ......
-
Restructuring Public Defense After Padilla.
...the immigration status of their clients" and advise on "the specific immigration consequences of pleading guilty"); Lyons v. Pearce, 694 P.2d 969, 977 (Or. 1985) ("One function a criminal defense attorney performs for a client is to disclose the consequences of a guilty plea and conviction.......