Raisley v. Sullivan
Decision Date | 10 February 1972 |
Citation | 8 Or.App. 332,493 P.2d 745 |
Parties | John William RAISLEY, Appellant, v. G. E. SULLIVAN, Superintendent, Oregon State Correctional Institution, Respondent. Russell Earl SHOUSE, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent. |
Court | Oregon Court of Appeals |
Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.
These cases were consolidated for the purpose of appealing from orders of the circuit court which denied petitions for post-conviction relief.
The petitioners each pled guilty to indictments charging them with the two crimes of Burglary, ORS 164.230, and Burglary Not in a Dwelling, ORS 164.240.
Each amended petition for post-conviction relief alleges:
'That petitioner's plea is void because he did not knowingly and understandingly waive his rights to compulsory process and confrontation and his right against self-incrimination.'
At the outset we must determine what the record 1 has to show in order to sustain a conviction based on a guilty plea entered after June 2, 1969, when that conviction is challenged in a post-conviction proceeding. On that date Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was handed down. Boykin holds that there must be an affirmative showing that a guilty plea was intelligent and voluntary. The opinion discusses the constitutional rights which are involved when a plea of guilty is entered, i.e., the privilege against self-incrimination, right to jury trial and right to confront one's accusers.
State courts 2 have interpreted Boykin in two ways. Some courts have required the record to show that the defendant was advised of, understood and voluntarily waived his privilege against self-incrimination and his rights to trial by jury and confrontation. In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969), cert. denied 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72 (1970); Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970); State v. Guy, 81 N.M. 641, 471 P.2d 675 (1970); Nachtigall v. Erickson, S.D., 178 N.W.2d 198 (1970); State v. Abodeely, Iowa, 179 N.W.2d 347 (1970); State ex rel. French v. Henderson, 255 La. 792, 232 So.2d 517 (1970).
Other states have held that the issue to be determined in a post-conviction proceeding is whether the guilty plea was entered voluntarily and intelligently. State v. Patterson, 14 Ariz.App. 158, 481 P.2d 528 (1971); The People v. McCullough, 45 Ill.2d 305, 259 N.E.2d 19 (1970); Grass v. State, 263 A.2d 63 (Me.1970); People v. Taylor, 383 Mich. 338, 175 N.W.2d 715 (1970); State v. Wolfe, 46 Wis.2d 478, 175 N.W.2d 216 (1970).
In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the petitioner challenged a guilty plea entered in a state court prior to Boykin. 3
Here the court stated:
400 U.S. at 31, 91 S.Ct. at 164.
'* * * The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. * * *' Brady v. United States, 397 U.S. 742, 747--748 n. 4, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970).
We agree with those state courts which have decided that the standard for determining the validity of a guilty plea is whether the plea was entered understandingly and voluntarily.
Another basis for our holding is the fact that Boykin was decided shortly after McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The McCarthy decision involved the application of Rule 11 of the Federal Rules of Criminal Procedure which requires a federal judge to personally address the defendant before accepting his guilty plea. In McCarthy, the Supreme Court refused to impose a specific procedure on the lower federal courts:
'The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself. * * *' 394 U.S. at 467 n. 20, 89 S.Ct. at 1171.
For similar reasons, we decline to impose a rigid formula on our own courts. The judge who accepts a guilty plea must have sufficient latitude to tailor his questions to the needs of the defendant before him.
Of course the requirement that a guilty plea must be voluntary and intelligent in order to be valid is not a new one. The element added by Boykin is that the record must contain an Affirmative showing of the voluntariness of the plea.
We turn now to an examination of the record before us.
Both petitioners were advised by the court of their right to court-appointed counsel at public expense and at their request the court appointed counsel for them. Petitioner Shouse wanted it understood that he would not have to keep the attorney appointed. 4 The court appointed a La Grande attorney for petitioners, who were in jail in Enterprise. At the post-conviction hearing petitioner Shouse testified that he telephoned the La Grande attorney and fired him because it had been about two weeks and the attorney had not come to see him.
'* * * (A)nd I told him I did not wish to have a lawyer--that I felt I wanted one at least that was trying to help me and he didn't actually say too much, so I told him I didn't wish to have a lawyer * * *.'
Petitioner then asked the lawyer to notify the judge that he did not want a lawyer.
At the post-conviction hearing petitioner Raisley also testified about the court-appointed La Grande attorney:
'Q Did you have an attorney represent you at that time?
'A To start off an attorney was appointed for us by the Court.
'Q What was his name?
'A I'm not sure.
'Q Did you talk to him at all?
'A No.
'Q Have you ever seen him?
'A No.
'Q How did he cease representing you in these cases? Why did he not represent you throughout the proceeding?
'A He didn't show up for court. We didn't believe him capable of defending us, I might say so we decided to defend ourselves. We thought we were capable of it.
'Q How long were you in custody before you entered your plea?
'A Approximately two weeks.
'Q Did you plead guilty at that time?
'A Yes.
'Q To both charges?
'A Yes.'
The above testimony was at the post-conviction hearing, but when defendants Shouse and Raisley appeared earlier in the criminal cases in Enterprise, they did not claim lack of availability of appointed counsel, but rather that they did not want counsel and were fully capable of giving themselves adequate and capable representation before the court.
The defendant then entered a plea of not guilty.
Colloquy between petitioner Shouse and the court on September 17, 1970:
'Now, I have been advised that possibly you do not wish to have counsel. Will you advise me as to whether you...
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