State v. Goddard

• Decision Date: 28 May 1971
• Citation: 485 P.2d 650,5 Or.App. 454
• Parties: STATE of Oregon, Respondent, v. John Calvin GODDARD, Appellant.
• Court: Oregon Court of Appeals

Page 650

485 P.2d 650

5 Or.App. 454

STATE of Oregon, Respondent, v. John Calvin GODDARD, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted April 23, 1971.

Decided May 28, 1971.

Mike Dye, Salem, argued the cause for appellant. With him on the brief were Kleen & Dye, Salem.

Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Following conviction for a felony in 1967, defendant was subjected to an enhancement of penalty under the Habitual Criminal Act, ORS 168.085. He appeals, citing as error: (1) the failure of the trial court to allow defendant to collaterally attack his prior felony convictions, and (2) selective enforcement of the Habitual Criminal Act against men only, and not women, violated the defendant's right to equal protection and due process of law. We consider them in order.

In 1963, following a felony conviction, Habitual Criminal Proceedings were regularly brought against the defendant. At that time, a prior sentence of five years in the Oregon State Penitentiary was vacated and defendant was sentenced to serve an enhanced penalty.

On December 19, 1967, defendant was convicted of Escape from Official Detention and sentenced to 15 years. Thereupon a second Habitual Criminal Proceeding against him was instituted. The last mentioned sentence was vacated, and defendant was ordered imprisoned for a period not to exceed his natural life. Defendant has appealed from that conviction.

In the second Habitual Criminal Proceeding, the district attorney filed an Information of Previous Convictions which listed the defendant's previous felony convictions. The defendant filed a motion asking for leave to collaterally attack the listed prior convictions upon the ground that they were not constitutionally valid on the grounds of 'absence of counsel, coerced waiver of indictment, and other denials of due process.' ¹ The court denied the motion.

In the trial phase of the Habitual Criminal Proceeding the court denied the defendant's request to collaterally attack on the grounds that the defendant had already been accorded that privilege in his 1963 Habitual Criminal Proceedings; that since the issues and parties were the same, the validity of those prior convictions had been established and that determination was res judicata unless there has been some change in the law which would raise constitutional issues which the defendant had had no opportunity to raise in the first Habitual Criminal Proceeding.

A defendant, if charged under ORS 168.055 with being an habitual criminal, may allege constitutional defects and thereby call into question one or more of his prior convictions. Clark v. Gladden, 247 Or. 629, 637, 432 P.2d 182 (1967).

In the defendant by reason of the earlier 1963 Habitual Criminal Proceeding now foreclosed from inquiring into the constitutional validity of his previous convictions? In Clark v. Gladden, supra, the court was faced with an analogous situation. A prisoner was serving an enhanced sentence as an habitual criminal. In the Habitual Criminal Proceeding, the defendant, being represented by counsel, did not see fit to challenge any of his prior felony convictions and admitted the truth of the previous convictions. Later the defendant filed a post-conviction petition alleging that the prior convictions were invalid because of denial of counsel and other constitutional defects. The issue was whether the defendant had waived (ORS 168.075) his right to challenge his prior convictions by failing to raise them at the hearing. The court held that despite admission by the defendant at the time of the original enhancement of penalty proceeding that the allegations of conviction were true, the alleged defects in the convictions had not been waived by the mere failure of the defendant to challenge the prior convictions at that time.

Clark v. Gladden, supra, involved an appeal from a single Habitual Criminal Proceeding. However, the court also discussed ORS 138.510(1) and 138.550(1) and (2). The court stated:

'Under ORS 138.510(1) a prisoner has a statutory right, however, tardily he may act, to petition for redress of constitutional grievances so long as the questions presented were not Actually decided in his former proceedings nor otherwise barred by express terms of the statute. See ORS 138.550(1), (2).' 247 Or. at 635, 432 P.2d at 185.

(Emphasis supplied.)

Here the defendant contends that the validity of his prior convictions was never actually challenged in the 1963 proceedings and, further, that he plead guilty at that time on the advice of his attorney, just as in Clark v. Gladden, supra. Defendant's specific contention in this appeal is that he wishes to attack two of his prior felony convictions prior to the 1963 proceeding solely on the ground that his waiver of indictment in those earlier cases was made without the advice of counsel. Since the present case was decided in 1967, this issue was not available to him in the 1963 Habitual Criminal Proceeding since Clark v. Gladden, supra, had not yet been decided. We note also that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, was handed down on March 18, 1963, and that the defendant's first Habitual Criminal Proceeding took place on January 18, 1963. Thus we think that the defendant here was entitled to collaterally attack in the 1967 proceeding the earlier convictions which he now seeks to challenge.

However, before one may obtain post-conviction relief, he must show that he has suffered some prejudice in the criminal process. Dixon v. Gladden, 250 Or. 580, 444 P.2d 11 (1968).

In State v. Miller, 254 Or. 244, 458 P.2d 1017 (1969), the defendant, while unrepresented by counsel, waived his right...