Moen v. Peterson, C-11030
Decision Date | 12 September 1990 |
Docket Number | C-11030 |
Citation | 802 P.2d 76,104 Or.App. 481 |
Parties | Ralph Ernest MOEN, Appellant, v. R.S. PETERSON, Superintendent, Oregon State Correctional Institution, Respondent. 87; A61667. . On Respondent's Petition for Reconsideration |
Court | Oregon Court of Appeals |
David L. Runner, Asst. Atty. Gen., Salem, Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, for petition.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Defendant petitions for review of our decision that plaintiff's conviction was rendered void by his counsel's failure to advise him of the possibility of a minimum sentence. 103 Or.App. 71, 795 P.2d 1109 (1990). We treat the petition as one for reconsideration, ORAP 9.15(1), allow it but adhere to our former decision.
Plaintiff pleaded no contest to a charge of sodomy in the first degree. ORS 163.405. On direct appeal, we affirmed. 86 Or.App. 366, 741 P.2d 935 (1987). Thereafter, the Supreme Court held in Hartzog v. Keeney, 304 Or. 57, 742 P.2d 600 (1987), that counsel's failure to advise a criminal defendant of the possibility of a minimum sentence before entry of a guilty plea constitutes ineffective assistance of counsel under the Oregon Constitution. The Supreme Court denied plaintiff's petition for review on September 29, 1987. State v. Moen, 304 Or. 186, 743 P.2d 736 (1987). In June, 1989, plaintiff first filed a claim based on Hartzog for post-conviction relief.
In our decision, we applied the holding in Hartzog to this case and reversed the post-conviction court's decision that plaintiff's knowledge of the possibility of a minimum sentence in a different case for a different crime was sufficient under Hartzog. We also reasoned that the analysis used by the court in State v. Fair, 263 Or. 383, 502 P.2d 1150 (1972), to determine whether a constitutional rule should be applied retroactively 1 is not applicable in post-conviction cases, because a post-conviction proceeding is a new proceeding that is distinct from a direct appeal. Therefore, any application of a constitutional principle articulated after a direct appeal has been terminated is prospective and not retroactive.
Defendant argues:
In our opinion, we said:
103 Or App at 74, 795 P.2d 1109.
Our first sentence in that quotation is wrong. In Kellotat v. Cupp, 78 Or.App. 61, 714 P.2d 1074 (1986), the petitioner appealed from a denial of post-conviction relief, contending that he was denied a post-indictment preliminary hearing in 1979 in violation of his constitutional rights. He relied on a constitutional rule first enunciated in 1981 that entitled a defendant to a post-indictment preliminary hearing if the prosecutor had no recognizable standards for deciding which charging procedure to use. See State v. Clark, 291 Or. 231, 630 P.2d 810, cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981); State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981). Under the criteria in Fair, we held that the rule in Clark and Edmonson was notapplicable to the petitioner, even though his appeal had not been decided when those decisions were handed down.
We do not understand defendant's emphasis on the fact that "the petition for post-conviction relief in this case was a collateral attack on the earlier judgment of conviction." Every petition for post-conviction relief is a collateral attack on the judgment of conviction. It is also a misnomer to characterize the application of the Hartzog rule to this case as "retroactive." Unlike the claim in Kellotat, ineffective assistance of counsel was not, nor could it have been, an issue on direct appeal. The Hartzog decision was rendered 21 months before the claim of ineffective assistance of counsel was made by plaintiff in the post-conviction relief proceeding. The issue is whether a newly articulated constitutional rule applies to an issue that could not have been raised on direct appeal and that could have the effect of vacating a previous judgment of conviction.
In Myers v. Cupp, 49 Or.App. 691, 695, 621 P.2d 579 (1980), rev. den. 290 Or. 491 (1981), we said:
Because plaintiff's claim is of constitutional dimension, the fact that his appeal was pending when Hartzog was decided is not determinative. Moreover, a claim of ineffective assistance of counsel because of the failure to advise of the possibility of a minimum sentence is a substantial denial of constitutional rights. Hartzog v. Keeney, supra, 304 Or. at 64, 742 P.2d 600. Furthermore, the fact that plaintiff could not have raised the issue on direct appeal and that his only opportunity to raise it is in a petition for post-conviction relief are important considerations in determining whether the rule in Hartzog ought to be applied. See ORS 138.050.
Defendant argues that we must consider the criteria in State v. Fair, supra. We note that the superintendent did not raise this argument in the post-conviction relief court. However, as respondent in this court, he is entitled to change his argument and claim that the post-conviction court was right but gave the wrong reasons. Tarwater v. Cupp, 304 Or. 639, 644 n. 5, 748 P.2d 125 (1988).
Even if we were to apply the Fair criteria, we would reach the same result. Under Fair, we first analyze the purpose to be served by the new constitutional standard. If the new rule substantially enhances the reliability of the determination of guilt and is central to the fact-finding process, it will be applied. If the new rule is not central to the fact-finding process, we consider the extent of reliance by law enforcement authorities on the old standards and the effect on the administration of justice of an application of the new standards. State v. Fair, supra, 263 Or. at 388, 502 P.2d 1150.
Defendant argues that knowledge of the possibility of a mandatory minimum sentence is not central to the fact-finding process. We disagree. A plea of guilty or no contest eliminates fact-finding from the trial. The purpose of the Hartzog rule is to ensure that the criminal defendant has sufficient information about the consequences of a guilty plea to make or decline to make a knowing waiver of his right to trial. By pleading no contest, plaintiff subjected himself to a potential deprivation of liberty for 20 years and forfeited his right to have a trier of fact determine his guilt. He was faced with a choice of going to trial on multiple charges or entering a plea of no contest to one...
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