Miller v. Gladden

• Decision Date: 31 January 1968
• Citation: 437 P.2d 119,249 Or. 51
• Parties: Leonard Ellsworth MILLER, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 119

437 P.2d 119

249 Or. 51

Leonard Ellsworth MILLER, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 2, 1967.

Decided Jan. 31, 1968.

John Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem.

David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Petitioner appeals from the denial of his application for post-conviction relief. He was convicted of the crime of kidnapping, on a plea of guilty without benefit of counsel. The question presented is whether the petitioner knowingly waived his right to be represented by counsel.

The transcript of his arraignment and sentence, which took place at the same court appearance, shows that the only mention of counsel was the following:

'THE COURT: Are you represented by an Attorney?

'THE DEFENDANT: No. I would like to get this out of the way as quickly as possible.'

At the hearing on his application for post-conviction relief, petitioner, who was the only witness, testified that he had not been aware, during his court appearance, of his right to have an attorney appointed. There was no evidence to show the contrary. Upon cross-examination he testified he had been convicted, upon pleas of guilty, of three felonies prior to the conviction herein. He stated, however, that in one he had hired his own lawyer and in the others he did not remember having been informed of his right to the appointment of an attorney during the course of those proceedings.

If what transpired in the sentencing court amounted to a statement by petitioner that he did not want to be represented by counsel, which is extremely doubtful, to constitute a valid waiver it must have been done with the knowledge that he had a right to be represented by a court-appointed lawyer, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). He was not informed that he had that right. Nor is there any evidence of petitioner's background and experience from which it can be inferred that he had independent knowledge of his right to counsel. See Johnson v. Zerbst, supra. The mere fact of three previous convictions on pleas of guilty, with nothing more, is not sufficient to raise the inference.

ORS 138.620(2) provides that petitioner has the burden of proof in proving the allegations of his petition. Bloor v. Gladden, 227 Or. 600, 603, 363 P.2d 57 (1961). Petitioner met the burden by introducing the transcript of the proceedings in the sentencing court, which showed that he was not advised of his right to counsel and by testifying that he had no knowledge of it. It would be virtually impossible for the defendant to prove he did not have independent knowledge other than by saying so, which he di...