Stewart v. Cupp

• Decision Date: 12 February 1973
• Parties: James STEWART, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

Page 503

506 P.2d 503

12 Or.App. 167

James STEWART, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 24, 1972.

Decided Feb. 12, 1973.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

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

SCHWAB, Chief Judge.

Recently the United States Supreme Court held the practice of plea bargaining to be an 'essential' and 'desirable' part of the administration of criminal justice when 'properly administered.' Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, 432 (1971). One element of proper administration is:

'* * * (W)hen a plea (of guilty) rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.' Santobello v. New York, supra, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

Petitioner's appeal in this post-conviction case presents the problem of applying the above-quoted Santobello rule to an involved set of facts. We note that Santobello was decided after the post-conviction court's decision in this case.

On October 11, 1968, an indictment was returned against petitioner that charged the following four counts: (1) petitioner enticed a child, Brenda Smock, into a place of concealment with intent to commit a sex offense in violation of former ORS 167.045; (2) petitioner assaulted Brenda Smock with intent to rape in violation of former ORS 163.270; (3) petitioner was an accessory to an assault with intent to rape Brenda Smock committed by another child, Carey Richardson, i.e., petitioner induced and caused Carey Richardson to commit such an assault, petitioner thereby violating former ORS 163.270; and (4) petitioner contributed to the delinquency of a minor, Carey Richardson, in violation of former ORS 167.210.

The parties to this proceeding agree that negotiations between the district attorney and petitioner's counsel resulted in an agreement whereby petitioner would plead guilty to counts one and four of the October 11 indictment, and counts two and three would be dismissed. Petitioner's two guilty pleas were accepted. He was sentenced to five years on count one and five years on count four, the sentences to run consecutively. At the district attorney's motion, counts two and three were then dismissed.

On July 24, 1969, the Oregon Supreme Court, in State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), held the contributing to the delinquency of a minor statute, former ORS 167.210, to be unconstitutionally vague. Petitioner then initiated post-conviction proceedings attacking, on the authority of Hodges, his conviction and sentence under count four of the October 11 indictment. Petitioner prevailed in the circuit court and in this court; our decision is reported sub nom. Blakely v. Cupp, 2 Or.App. 110, 467 P.2d 138 (1970).

After Blakely was decided, on April 8, 1970, a single-count indictment was returned against petitioner charging him with assault with intent to rape Brenda Smock in violation of former ORS 163.270. This is the same charge that had been count two of the original October 11 indictment and previously dismissed pursuant to the plea bargain.

Petitioner initially plead not guilty to the April 8 indictment. By pre-trial motions petitioner contended that the April 8 indictment should be dismissed on the grounds of double jeopardy and collateral estoppel in that he had previously been charged with the same crime in the October 11 indictment. These motions were denied. Petitioner then changed his plea to guilty. He was sentenced to five years to run consecutively with the five years he was serving on count one of the October 11 indictment.

On October 14, 1971, petitioner initiated this post-conviction proceeding claiming his conviction under the April 8 indictment was invalid on the grounds, among others, that the April 8 indictment constituted a violation of the plea agreement made in relation to the October 11 indictment. While petitioner has argued a variety of other matters, we view the plea bargain issue as dispositive of this appeal. ¹

There is no dispute as to the fact that petitioner's guilty pleas to counts one and four of the October 11 indictment were the result of a bargain between himself or his attorney and the district attorney. There is a dispute as to how to best characterize the bargain that was then made. Petitioner contends he agreed to enter guilty pleas to counts one and four, and in return the state agreed to dismiss, i.e., not prosecute him, on counts two and three. The state contends that petitioner agreed, in effect, to expose himself to the possibility of being sentenced to up to ten years in the penitentiary, i.e., the maximum possible sentences under counts one and four, and in return the state dismissed the second and third counts.

Under petitioner's theory he fully performed his part of the bargain by entering guilty pleas to counts one and four; the fact that a subsequent fortuitous event unrelated to the October 11 indictment, i.e., the Hodges decision, made the bargain seem less desirable to the state does not constitute a breach on petitioner's part. This analysis leads petitioner to the conclusion that the April 8 indictment violated the district attorney's earlier promise and is thus invalid under Santobello.

Under the state's theory petitioner's successful post-conviction attack on count four of the October 11 indictment, i.e., the prior proceedings that resulted in our Blakely decision, would constitute a breach on petitioner's part in that he would no longer be facing the possibility of up to ten years in the penitentiary. Thus, the state's theory continues, it was justified in again bringing one of the charges against petitioner it had previously dismissed as part of the bargain relating to the October 11 indictment.

We conclude that petitioner's theory is the more sound. As the name implies, what is negotiated in plea bargaining is whether a criminal defendant will enter a...