State v. Custer

• Decision Date: 30 April 1965
• Citation: 240 Or. 350,401 P.2d 402
• Parties: STATE of Oregon, Respondent, v. Roy Alexander CUSTER, Appellant.
• Court: Oregon Supreme Court

Page 402

401 P.2d 402

240 Or. 350

STATE of Oregon, Respondent, v. Roy Alexander CUSTER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 7, 1965.

Decided April 30, 1965.

Charles V. Elliott, Portland, argued the cause and filed a brief for appellant.

Vincent G. Ierulli, Deputy Dist. Atty., argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before McALLISTER, C. J., and SLOAN, GOODWIN and HOLMAN, JJ.

McALLISTER, Chief Justice.

On March 25, 1963, the defendant, Roy Alexander Custer, was convicted on his plea of guilty, in the circuit court for Multnomah county, of the crime of burglary not in a dwelling, and was sentenced to imprisonment in the penitentiary for a term not to exceed ten years. Thereafter, on April 16, 1963, the district attorney filed an information, as required by ORS 168.015 et seq., pertaining to habitual criminals, charging defendant with six former convictions of a felony. Defendant denied the allegations of the information, and counsel was appointed for him. After a hearing, the court found that defendant had five former convictions of a felony. The court on September 16, 1963 vacated the original sentence imposed on March 25, 1963, and imposed for the principal offense a new sentence of imprisonment in the penitentiary for life. Defendant appeals.

Defendant does not challenge the findings of five former convictions of a felony in addition to the principal offense. He merely asserts, without the citation of any authorities, that he was denied due process of law in violation of the Fourteenth Amendment to the Constitution of the United States, and that the delay between the imposition of the original sentence and the imposition of the enhanced penalty amounted to the denial of a speedy trial and to cruel and unusual punishment.

The constitutionality of the statutes providing enhanced penalties for habitual criminals, both under our constitution and the Constitution of the United States, has long been settled. State v. Hicks, 213 Or. 619, 325 P.2d 794 (1958), cert. den. 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 579 (1959); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); 24B C.J.S. Criminal Law § 1959, p. 442; 25 Am.Jur. 261, Habitual Criminals § 4; Annot., 58 A.L.R. 20 (1929); 82 A.L.R. 345 (1933); 132 A.L.R. 91 (1941).

It is also settled that the application of our habitual criminal statutes does not impose cruel or unusual punishment, or punishment not in proportion to the offense in violation of Section 16, Art. I, of the Oregon Constitution. Tuel v. Gladden, 234 Or. 1, 9, 379 P.2d 553 (1963); State v. Hicks, supra, 213 Or. at 629, 630, 325 P.2d 794; State v. Smith, 128 Or. 515, 525, 273 P. 323 (1929).

The suggestion that delayed imposition of an enhanced penalty is a denial of the right to a speedy trial, guaranteed both by the Sixth Amendment to the Constitution of the United States and Section 10, Art. I, of the Constitution of Oregon, is answered in State v. Hoffman, 236 Or. 98, 385 P.2d 741 (1963), where we pointed out that the determination of...