Stacey v. State
Decision Date | 26 September 1977 |
Parties | Alfred Eugene STACEY, Appellant, v. STATE of Oregon, Respondent. |
Court | Oregon Court of Appeals |
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C. J., and TANZER and JOHNSON, JJ.
Petitioner appeals from an order sustaining respondent's demurrer to his petition for post-conviction relief.
In March 1976, petitioner entered a guilty plea to a misdemeanor charge of first degree criminal trespass. ORS 164.255. On May 11, 1976, the court suspended imposition of sentence and placed petitioner on probation for five years. Petitioner did not appeal. In January 1977, petitioner filed a petition for post-conviction relief alleging that on May 12, 1976, the court, in the absence of and without notice to petitioner or his attorney, added a condition to the probation requiring petitioner to pay $982.50 to Yamhill County as reimbursement for expenses incurred in retaining counsel for petitioner. The petition alleges that the addition of the condition in his absence and without notice to him violated due process. Respondent demurred to the petition and the court, without comment, sustained the demurrer.
ORS 138.550(1) provides:
In Lerch v. Cupp, 9 Or.App. 508, 515, 497 P.2d 379, 382, Sup.Ct. review denied (1972), we held:
"It is evident that the purpose and policy behind ORS 138.550(1), when construed in light of the (Post-Conviction) Act as a whole, dictates that that statute be read as requiring issues that can be raised on direct appeal to be so raised. * * *"
See also De Bolt v. Cupp, 19 Or.App. 545, 528 P.2d 601 (1974), Sup.Ct. review denied (1975). The rule in Lerch v. Cupp, supra, however, applies only to claims which could have reasonably been raised on appeal. Here petitioner claims that he was not in court but was incarcerated in the Oregon State Penitentiary at the time the court considered and added the condition that he pay for the cost of his defense. The court's judgment order, to the contrary, states "(t)he defendant appeared in person * * * and by his attorney." A factual dispute of this sort cannot be resolved on appeal. Thus, petitioner is not barred by Lerch v. Cupp, supra, from bringing this proceeding.
The state contends that even if petitioner's allegations are true, the petition sets forth no ground for post-conviction relief. ORS 138.530(1)(c) provides:
The state maintains that an order placing a defendant on probation is not a "sentence" within the purview of ORS 138.530(1)(c). ORS 138.040 provides
Thus, insofar as a defendant's right to appeal is concerned, an order of probation is treated as a sentence. See also State v. Stalheim, 275 Or. 683, 552 P.2d 829 (1976); State v. Wanrow, 30 Or.App. 75, 566 P.2d 533 (1977); State v. Getsinger, 27 Or.App. 339, 556 P.2d 147 (1976). We find no reason why an order of probation should not be similarly treated as a sentence under ORS 138.530(1)(c). To construe ORS 138.040 otherwise would be to deny a person in the position of petitioner a practical means of challenging the terms of his probation by presenting him with a Hobson's choice comply with a condition of probation he believes was unconstitutionally imposed or violate that condition in order to obtain a judicial forum in which to seek relief. 1
The state next contends that the imposition of the additional condition of probation violated no constitutional rights of petitioner. ORS 137.030 provides:
"For the purpose of giving judgment, if the conviction is for a felony, the defendant shall be personally present; but if it is for a misdemeanor, judgment may be given in his absence."
Historically, if a sentence involved imprisonment, courts have held that a defendant has a right to be present at the time of sentencing whether the right be the constitutional right to due process, Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262 (1884); United States v. Huff, 512 F.2d 66, 71 (5th Cir. 1975); People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972); Gray v. State, 158 Tenn. 370, 372, 13 S.W.2d 793 (1929), or a common law right "ancient in the law." United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); see Ball v. United States, 140 U.S. 118, 129, 11 S.Ct. 761, 35 L.Ed. 377 (1891); State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975). Conversely, most courts which have considered the issue have held that a defendant has no right to be present when the sentence involves only a fine. 2 Warren v. State, 19 Ark. 214, 68 Am.Dec. 214 (1857); Commonwealth v. Cheek, 62 Ky. 26 (Duv.1863); Son v. People, 12 N.Y. 344, 348 (Wend.1834); State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666, 668 (1966); State v. Campbell, 42 W.Va. 246, 24 S.E. 875 (1896). See also Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218 (1892); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). The historic reason for distinguishing between sentences involving fines and those involving imprisonment was set forth in Son v. People, supra 12 N.Y. at 348:
See United States v. Janiec, 464 F.2d 126 (3d Cir. 1972); United States v. Hone, 456 F.2d 495 (6th Cir. 1972); United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970); Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969). See also United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973). In Smith v. State, 11 Md.App. 317, 273 A.2d 626 (1971), the court held that due process, as well as the Sixth Amendment's guarantee of a right to counsel, extended to give a defendant a right to rebut facts at sentencing where only probation is imposed.
The court's authority to compel a defendant to repay the county for the costs of his defense is sharply limited, both by statute and the United States Constitution. 3 ORS 161.665(1) allows a court to require a convicted defendant to pay costs which may include the costs of his defense. State v. Fuller, 12 Or.App. 152, 504 P.2d 1393, Sup.Ct. review denied (1973), aff'd sub nom Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). ORS 161.665(2) limits the types of costs which may be assessed:
ORS 161.665(3) specifies the type of defendant against whom costs may be assessed:
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