State v. Montgomery

• Jurisdiction: Oregon
• Citation: State v. Montgomery, 650 P.2d 111, 58 Or.App. 630 (Or. App. 1982)
• Docket Number: No. 10-80-08065,10-80-08065
• Parties: STATE of Oregon, Respondent, v. Sidney Darrell MONTGOMERY, Appellant. ; CA A20185.
• Court: Oregon Court of Appeals
• Decision Date: 29 September 1982

Page 111

650 P.2d 111

58 Or.App. 630

STATE of Oregon, Respondent, v. Sidney Darrell MONTGOMERY, Appellant.

No. 10-80-08065; CA A20185.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1982.

Decided Aug. 25, 1982.

Reconsideration Denied Sept. 29, 1982.

David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

William F. Gary, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen. and Richard David Wasserman, Asst. Atty. Gen., Salem.

Before GILLETTE, P. J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant, convicted of burglary in the first degree, assigns error only to the trial court's denial of a transcript for purposes of appeal at state expense. We affirm.

The sentencing order was entered on January 20, 1981. The Public Defender was appointed to represent defendant on appeal, and a notice of appeal from the judgment was filed on February 19, 1981. Defendant sought a transcript of the trial court proceedings at state expense, pursuant to ORS 138.500(2). On the basis of the statement of trial counsel that the only errors potentially appealable concerned two instructions given, the trial court granted a transcript limited to the jury instructions and exceptions to those instructions.

Defendant twice filed supplemental affidavits in support of requests for the entire transcript and twice filed alternative writs of mandamus in the Supreme Court after the circuit court had denied the transcript. The writs were denied without comment. Defendant then filed a petition for writ of certiorari in the United States Supreme Court. That petition was also denied. On January 6, 1982, the Public Defender indicated to this court that it could not complete the appeal without a transcript of the trial court proceedings. We directed the Public Defender to proceed nonetheless.

The brief submitted on defendant's behalf, however, does not assign error to any of the proceedings leading to defendant's conviction of the burglary charge. The only assignment of error is the denial of the transcript. Defendant contends that he cannot proceed on appeal without the transcript and that this court must either grant his request for a transcript or vacate his conviction, because he has been denied his right to appeal and his right to effective assistance of counsel.

The determinative issue is whether defendant may seek review of an order denying a transcript in an appeal from the judgment of conviction. ORS 138.040 provides in pertinent part:

"The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court * * *. Upon an appeal * * * any decision of the court in an intermediate order or proceeding may be reviewed. * * *."

It is apparent that the order denying a transcript is not an "intermediate" order under ORS 138.040. That statute does not provide for review of subsequent orders of the trial court in an appeal taken from the judgment on a conviction. The only issue raised by defendant on appeal not being properly before us, we affirm.

Our ruling that the denial of a transcript is not appealable under ORS 138.040 may decide this case, but it is of no help to counsel or the parties caught up in the problem. The fact is that the conundrum represented by the denial of all or a portion of a transcript has turned into a shell game. See State ex rel. Acocella v. Allen, 288 Or. 175, 604 P.2d 391 (1979). We think it is time to reveal under which shell the pea is hidden.

The decision as to how much of a transcript may be obtained by an indigent defendant on appeal is entrusted to the trial court. ORS 138.500(2); State ex rel. Acocella v. Allen, supra. The trial judge's authority to deny a transcript, however, is significantly limited by constitutional constraints. State ex rel. Acocella v. Allen, supra; Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 495-98, 83 S.Ct. 774, 778-80, 9 L.Ed.2d 899 (1963); see also Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414, 30 L.Ed.2d 372 (1971).

The process by which the transcript is prepared and settled, and under which requests to augment the transcript are made and decided, is provided in ORS 19.029 and 19.078 to 19.098. These statutes are made applicable to criminal appeals by ORS 138.185. The process covered by these statutes occurs after notice of appeal has been filed; the trial court's authority is therefore residual and limited. See ORS 138.185; ORS 19.033.

The settling of a transcript or the denial of all or a part of a transcript are all final orders made after judgment. See ORS 19.078. It may be that in some cases, as here, that order will, in the view of a defendant, deny him a substantial right by unreasonably impairing his ability to prosecute an appeal. If, as we today hold, he cannot raise this matter on direct appeal from the judgment in the case, how then is the matter to be raised?

The matter is not free from doubt, but we believe ORS 19.010(2)(c) applies. That statute permits appeal of

" * * * (a) final order affecting a substantial right, and made in a proceeding after judgment or decree."

An order denying all or part of a transcript certainly fits within the statutory definition. We say the question is "not free from doubt" only because ...