State v. Keys

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Clifford Darrell KEYS, Defendant-Appellant.
• Citation: 302 Or.App. 514,460 P.3d 1020
• Docket Number: A163519
• Court: Oregon Court of Appeals
• Decision Date: 26 February 2020

302 Or.App. 514

460 P.3d 1020

STATE of Oregon, Plaintiff-Respondent,

v.Clifford Darrell KEYS, Defendant-Appellant.

A163519

Court of Appeals of Oregon.

Argued and submitted July 30, 2018.

February 26, 2020

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jamie Contreras, Assistant Attorney General, argued the cause for respondent. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore Defendant appeals a conviction for unlawful possession of methamphetamine, a felony, arguing that his conviction is void. Specifically, defendant contends that the trial court lacked jurisdiction to enter the felony conviction because defendant was charged by information and was not indicted, he did not have a preliminary hearing, and he did not knowingly waive his right to indictment or preliminary hearing. We agree with defendant and, therefore, reverse.¹

The pertinent facts are procedural and undisputed. Defendant was arrested for possession of methamphetamine in violation of ORS 475.894, and an information was filed charging him with that felony crime. At defendant’s arraignment, the court greeted defendant and stated that it was "going to be appointing [a particular lawyer] to be your attorney and she is going to assist you with this arraignment this morning." The lawyer and defendant had a brief interaction, which was transcribed, after which the lawyer purported to waive defendant’s right to a pretrial hearing:

"[DEFENSE COUNSEL]: Good morning, Mr. Keys. * * * I’m going to represent you in this matter. Is this a correct spelling of your name?

"THE DEFENDANT: Yes, it is.

"[DEFENSE COUNSEL]: And were you born on [a particular date]?

"THE DEFENDANT: Yes, I was.

"[DEFENSE COUNSEL]: We will acknowledge receipt of the Information, waive any further reading or advice of rights. His name and date of birth are correctly set out on that document. We are prepared to waive preliminary hearing at this time , reserving the right to assert that in the future should that become necessary."

(Emphasis added.)

Defendant asserts, and the state does not contest, that the transcript shows that neither the court nor defense counsel explained the purpose or benefits of a preliminary hearing to defendant at the April hearing. Defendant also notes that neither the court nor defense counsel confirmed that defendant understood what rights were being waived on his behalf. After a series of status conferences and a hearing on a suppression motion, which the court denied, defendant waived his right to a jury trial and the court convicted him on stipulated facts.²

On appeal, defendant argues that the trial court lacked jurisdiction to enter the judgment of conviction "[i]n the absence of an indictment, a preliminary hearing, or the defendant’s knowing, intentional, and personal waiver of indictment or preliminary hearing." Defendant relies on Article VII (Amended), section 5, of the Oregon Constitution, which provides that a person may be charged with a felony only by indictment or a finding of probable cause following a preliminary hearing before a magistrate, unless the defendant knowingly waives the right to those procedures.³ He also relies on Huffman v. Alexander , 197 Or. 283, 251 P.2d 87 (1952), reh’g den. , 197 Or. 283, 253 P.2d 289 (1953), in which the court, relying on an analogous then-applicable constitutional provision, held that, absent an indictment or valid waiver of indictment in a criminal case, any resulting conviction is void.⁴

The state’s responsive argument is narrow. Significantly, the state does not contend that, under the circumstances, defense counsel’s purported waiver of preliminary hearing was effective for purposes of Article VII (Amended), section 5. Indeed, that would be a challenging argument to make, given that counsel purported to waive her client’s constitutional right without having advised or consulted him on the point. Under the circumstances—and in the absence of any argument from the state that counsel’s waiver had legal effect—we, like the parties, base our analysis on an understanding that counsel’s purported waiver did not constitute a "knowing" waiver by defendant for purposes of Article VII (Amended), section 5.

In arguing that the court had jurisdiction to enter the judgment in this case despite the lack of an express waiver of indictment or preliminary hearing, the state acknowledges—and does not challenge— Huffman ’s holding that "judgment rendered upon an information without waiver of indictment would be void." 197 Or. at 301, 251 P.2d 87. Instead, the state relies on State v. Sheppard , 35 Or. App. 69, 72-73, 581 P.2d 549 (1978), rev. den. , 285 Or. 1 (1979), in which we (1) rejected an argument that a circuit court lacked jurisdiction in a felony case in which the defendant had had a preliminary hearing on the original information, but there was no preliminary hearing on a later, second information, and (2) held that the defendant waived any nonjurisdictional objection to the absence of a preliminary hearing on the second information when he entered his plea. The state asserts that Sheppard stands for the proposition that any error in proceeding in the absence of indictment, preliminary hearing, or express waiver is not a jurisdictional error. Moreover, the state contends, Sheppard establishes that defendant did waive his rights to indictment or preliminary hearing when he entered a not-guilty plea and "submitt[ed] to the subsequent trial without making any objection, despite having the assistance of counsel throughout."

Our evaluation of the parties’ arguments starts with the Oregon Constitution, which gives circuit courts "subject matter jurisdiction over all actions unless a statute or rule of law divests them of jurisdiction." State v. Terry , 333 Or. 163, 186, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002) ; see Or. Const., Art. VII (Original), § 9 ("All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts[.]"); Or. Const., Art. VII (Amended), § 2 ("The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as present constituted until otherwise provided by law."). Thus, the circuit courts have subject matter jurisdiction over all criminal matters except to the extent that "a statute or rule of law" provides otherwise, somehow limiting or constraining the courts’ jurisdiction. Terry , 333 Or. at 186, 37 P.3d 157.

Defendant essentially contends that, as pertinent here, Article VII (Amended), section 5, of the Oregon Constitution sets out such a limiting "rule of law." It provides that a person may be charged with a felony only upon indictment, on an information if a preliminary hearing results in a probable cause determination, or on the defendant’s knowing waiver of the indictment or preliminary hearing. Or. Const., Art. VII (Amended), § 5 (3), (4), (5). "Thus, absent a waiver, the state cannot charge a defendant with a felony unless persons outside the office of the prosecutor—either grand jurors, in the context of an indictment, or a magistrate, in the context of an information—determine that the state has probable cause to move forward with that charge." State v. Kuznetsov , 345 Or. 479, 483-84, 199 P.3d 311 (2008).

Defendant asserts that, in Huffman , the Supreme Court held that a court lacks jurisdiction to try a defendant on criminal charges when the defendant was not indicted and did not validly waive indictment.⁵ Indeed, the Huffman court described its task in just those terms: "Our first question is whether an Oregon court has jurisdiction to try a defendant on an information in the absence of a waiver of indictment." 197 Or. at 299, 251 P.2d 87. The Huffman defendant had signed a waiver of indictment and later pleaded guilty to "larceny by bailee," but he contended in subsequent habeas corpus proceedings that his waiver had been obtained through false representations, that he had not understood the meaning of the paper when he signed it, and that he had never intended to waive indictment. Id . at 292, 251 P.2d 87. The court undertook to determine what the effect would be if, in fact, the waiver had not been valid.

The court cited with approval United States Supreme Court cases that discussed the significance of the Fifth Amendment grand jury requirement and described the absence of an indictment as depriving a court of jurisdiction:⁶

" ‘It is of no avail, under such circumstances [where an indictment was changed without resubmission to a grand jury] to say that the court still has jurisdiction of the person and of the crime, for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, can be "held to answer," he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned.’ "

Huffman , 197 Or. at 300, 251 P.2d 87 (quoting Ex parte Bain , 121 U.S. 1, 7 S. Ct. 781, 787, 30 L. Ed. 849 (1887) (emphasis added));⁷ see id . at 300-01, 251 P.2d 87 (citing additional cases).

Huffman held that "the same rule must be applied under Article VII [ (Original) ], section 18 of the Oregon constitution." Id . at 301, 251 P.2d 87. Thus, "unless a defendant validly waives indictment he...