State v. Miller

• Decision Date: 24 September 1969
• Citation: 458 P.2d 1017,254 Or. 244
• Parties: STATE of Oregon, Respondent, v. Leonard Ellsworth MILLER, Appellant.
• Court: Oregon Supreme Court

Page 1017

458 P.2d 1017

254 Or. 244

STATE of Oregon, Respondent, v. Leonard Ellsworth MILLER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton, May 5, 1969.

Decided Sept. 24, 1969.

William A. Galbreath, Milton-Freewater, and John Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With them on the brief were Gary D. Babcock, Public Defender, Salem, Roy Kilpatrick, John Day John J. Haugh, Portland, and Galbreath & Pope, Milton-Freewater.

Jack F. Olsen, Deputy Dist. Atty., Pendleton, argued the cause for respondent. With him on the brief was Raoul P. Smith, Dist. Atty., Pendleton.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

HOLMAN, Justice.

In 1953 defendant was convicted of kidnapping. At that time while unrepresented by counsel he waived his right to be indicted by the grand jury and consented to the filing of an information. He was then arraigned and pleaded guilty and was given a sentence of 25 years.

Thereafter, defendant commenced proceedings in the nature of Coram nobis. The trial court refused to assert jurisdiction, defendant appealed, and the circuit court's ruling was affirmed. State v. Miller, 214 Or. 208, 328 P.2d 869 (1958). Subsequently, defendant filed habeas corpus proceedings which were dismissed, and he again appealed to this court. The dismissal was affirmed. Miller v. Gladden, 219 Or. 538, 348 P.2d 44 (1959). Defendant then brought a proceeding for post-conviction relief, claiming that he had not knowingly waived his right to be represented by counsel at the time of his plea of guilt. His request for relief was denied by the trial court. Upon appeal, this court set aside his conviction and remanded him to the court of his conviction for further proceedings. Miller v. Gladden, 249 Or. 51, 437 P.2d 119 (1968).

Defendant was thereafter indicted by the grand jury in 1968 and charged with the identical crime. A demurrer based upon the statute of limitations was filed to the indictment. The demurrer was sustained. Thereafter, the state proceeded upon the 1953 information. Defendant contended that the information was invalid but his contention was denied. He subsequently appeared at a time set for the entering of a plea. At this time he refused to plead because he had not received a copy of the information after his plea of guilt was set aside. The court entered a plea of 'not guilty' for him. Defendant then filed a demurrer to the information which was overruled on its merits. At this time he contended that he had not been arraigned. Although he and his attorney were present at all times during trial, they refused to participate. The jury returned a verdict of guilty, and this appeal is from that conviction.

Defendant contends that the 1953 information is of no validity and that the running of the statute of limitations prevents any new prosecution. He argues that the information is not valid because it was set aside by this court's prior decision overturning his conviction. This court's decision set aside his plea of guilt because he had not waived the aid of counsel at the time he pleaded. The decision did not and was not intended to invalidate the information.

Defendant also contends that the information is invalid for the same reason the plea was held invalid; I.e., because he had not waived counsel at the time he waived indictment by the grand jury. He does not contend that he did not actually intend to waive indictment but only that, as a matter of law, it was impossible for him to weigh the consequences and to make an intelligent choice without the advice of a lawyer. If waiver of indictment is a 'critical stage' in the proceedings, he was entitled to be represented, prejudice is presumed, and his contention is correct. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

Defendant's right to be indicted by the grand jury before he can be prosecuted criminally is embodied in Art. VII (Amended), § 5, Constitution of Oregon. ¹ The constitutional provision permits a waiver of the right. Undoubtedly, the reason for requiring indictment by the grand jury was the fear that there might otherwise be arbitrary and unwarranted use of the criminal process by district attorneys. Study has subsequently indicated that the anticipated danger is now more theoretical than actual. Many states have abandoned the requirement that criminal prosecutions must be commenced by grand jury indictment. We know of no resulting spate of abuses. On the contrary, a greater percentage of successful prosecutions appears to be resulting from cases commenced by information than from those commenced by indictment. See Moley, 'The Use of the Information in Criminal Cases,' Vol. XVII, No. 5, p. 292, ABAJ (1931); Miller, 'Informations or Indictments in Felony Cases,' 3 Or.L.Rev. 290. We do not believe that waiver of indictment is a critical stage in the proceedings because of any possible danger that informations will be filed under circumstances in which an indictment could not have been secured. We believe that Hamilton requires, in the absence of an intelligent and knowing waiver of counsel, legal representation for an accused at a time when he must take steps or make a choice which is likely to have a substantial effect on the prosecution against him. We do not perceive that waiver of grand jury is such a choice, as we do not believe that such a waiver is actually determinative of whether criminal proceedings could or would be brought.

Had defendant chosen to insist upon indictment, there is nothing that a lawyer could have done to represent him before the grand jury, because that is a closed and nonadversary proceeding. All that a lawyer could have done for him was warn him not to voluntarily testify in front of the grand jury where, while unrepresented, he would have been subject to questioning by the district attorney and the grand jurors. Commonwealth v. Phillips, 208 Pa.Super. 121, 220 A.2d 345 (1966), was a case where the relevant facts were similar to those here. In holding that waiver of grand jury was not a 'critical stage' in criminal proceedings, the court said as follows:

'* * * The possibility that the grand jury would have ignored the bill of indictment, which possibility appellant could not have influenced in the slightest, is not a Right which is lost any more than the 'right' to remain unarrested is given up when a suspect voluntarily turns himself in to the police. * * *.' 208 Pa.Super. 130, 220 A.2d 349--350.

Defendant next contends that the 1953 information was invalidated by the state's ineffective attempt to proceed by indictment in 1968. He argues that when the trial court sustained the demurrer, it was obligated by ORS 135.670 ² and 135.680 ³ to resubmit the matter to the grand jury or to dismiss the proceeding with prejudice. He claims that the new proceeding could not be abandoned and the old information resurrected. We hold that the provisions of the two statutes were not intended to apply to a situation like the present. The words of ORS 135.670, '* * * is a bar to another action for the same crime * * *,' refer to a subsequent proceeding and not to a prior valid proceeding then pending which was interrupted by ineffective legal action.

Defendant next appears to contend that the statute of limitations, ORS 131.110(2), ⁴ continued to run despite the pendency of the information, and that the state had only the three-year limitation period in which to correct any defect in the original prosecution. ORS 131.130 provides that an action is commenced within the meaning of the statute of limitations 'when the indictment is found and filed with the clerk of the court or, in cases triable without indictment, when the indictment or complaint is filed or lodged in the court or with the officer having jurisdiction of the action.' No mention is made of cases commenced by information. The statute was enacted in 1864 before the use of informations was permitted, and it has never changed. Because filing an information is a substitute proceeding for indictment, we construe the provision relative to indictment to cover the situation when indictment is waived and an information is used. Therefore, filing the information tolled the statute.

Defendant relies upon the following language found in the annotation at 90 A.L.R. 452, 456:

'It is generally held that the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not operate to stop the running of the Statute of Limitations pending the return or filing of another indictment or information, in the absence of a statute expressly so providing. * * *.'

Defendant attempts to equate the language 'no valid conviction can be had,' with 'no valid conviction Was had.' We do not so equate the language. The 1953 information was valid and its filing tolled the statute. It is still pending and has never been dismissed. Defendant attempts to rely on State v. Silver, 239 Or. 459, 398 P.2d 178 (1965), in which an indictment was returned within the time permitted by the statute but was later dismissed. A new indictment was returned after the time permitted by the statute had elapsed. The court held that the new indictment was barred by the statute of limitations because the statute had not been tolled by the first indictment. The difference in the present case is plain. The original proceeding which was commenced by information within the period permitted by the statute was never dismissed.

Defendant admits in his statement of facts that he was arraigned in 1953. However, he argues that he was never 'arraigned.' We presume he means that he was never rearraigned after his plea of guilt was set aside. This raises the question whether under Oregon law he was required, at the time of his unrepresented 1953 arraignment, either to avail himself of or forfeit substantial rights. If he was so...