Strong v. Gladden
| Decision Date | 11 January 1961 |
| Citation | 225 Or. 345,358 P.2d 520 |
| Parties | Donald LeRoy STRONG, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
Robert Y. Thornton, Atty. Gen., and Robert G. Danielson, Asst. Atty. Gen., for the motion.
Thomas W. Hansen, Salem, contra.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
The plaintiff Donald LeRoy Strong, a prisoner in the Oregon State Penitentiary, on July 16, 1959, filed a petition in the Circuit Court for the County of Marion seeking relief under the Post-Conviction Hearing Act. ORS 138.510 to 138.680.
The plaintiff had been convicted in the Multnomah county circuit court. The Marion county circuit court, being of the opinion the hearing could be 'more expeditiously conducted' in the county where the conviction was had, on its own motion caused the matter to be transferred to the Multnomah county circuit court. ORS 138.560(4).
On August 5, 1959, the Multnomah county circuit court entered an order which in substance stated that the plaintiff having requested an order 'authorizing and directing * * * Warden of the Oregon State Penitentiary' to deliver him to the sheriff of Multnomah county pending further proceedings in the post-conviction hearing, it was ordered that the warden deliver the plaintiff to the sheriff of Multnomah county and that he be confined in the Multnomah county jail 'until the conclusion of the proceedings.'
The warden of the penitentiary, in accordance with the order, delivered the plaintiff to the custody of the sheriff of Multnomah county.
Several hearings were had before the circuit court of Multnomah county upon various motions and demurrers. On March 15, 1960, after the plaintiff had filed a second amended petition for post-conviction relief, he was permitted to dismiss his petition and on March 16, 1960, he was ordered returned to the 'custody of the Warden of the Oregon State Penitentiary.'
On May 13, 1960, plaintiff again filed in the Marion county circuit court his petition for post-conviction relief, alleging, as he had before in the prior proceedings, that the act under which he was convicted was unconstitutional and void.
The defendant filed a demurrer to the petition and on October 18, 1960, the plaintiff filed an 'Amended Petition For Post-Conviction Relief.'
In plaintiff's amended petition he does not set out any matters challenging the lawfulness of his conviction, but, in general, alleges that he filed a petition for post-conviction relief in Marion county which was transferred to Multnomah county and later dismissed; that while these proceedings were pending he was held in the Multnomah county jail for a period of 223 days and that upon his return to the penitentiary he was advised that the time he had spent in the jail would not be considered as applying on the term of his sentence; that he then brought a habeas corpus proceeding and relief was denied by the trial court; that if he received the statutory allowance for good time behavior and his time spent in the Multnomah county jail he would be entitled to a release from the penitentiary August 30, 1960. Plaintiff then alleges:
'That by reason of the fact that the Post-conviction Act allows such a petition to be filed, and, further, allows the Court to transfer said case to the county of conviction without any opportunity of petitioner to object or have such order reviewed, the application of the Post-conviction Relief Act to then transfer the petitioner to Multnomah County and cause the petitioner loss of time in serving his sentence is unconstitutional and deprives the petitioner of his liberty without due process of law.'
The defendant demurred to this amended petition. The demurrer was sustained and the plaintiff appealed. The defendant has moved for the dismissal of the plaintiff's appeal because 'no substantial question of law is presented' by the appeal.
The plaintiff seems to have misconstrued his remedy. The Post-Conviction Hearing Act was enacted by the legislature to eliminate the confusion that had arisen over the use of various common-law remedies to challenge the lawfulness of a person's conviction of crime and to provide a single and exclusive proceeding whereby the convicted person might challenge the lawfulness of the proceedings which led to the judgment pronounced by the trial court. The legislature, however, did not abolish the ancient writ of habeas corpus. This is specifically retained in criminal cases where the prisoner challenges his restraint upon grounds that do not challenge the lawfulness of the proceedings upon which the judgment of conviction rests.
ORS 138.540 provides as follows:
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Bartz v. State
... ... 361] relief on certain grounds. Strong v. Gladden, 225 Or. 345, 348, 358 P.2d 520 (1961). ORS 138.510(2) is one of those procedures. The legislature's purpose in including ORS 138.530(2) ... ...
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Macomber v. Gladden
... ... 26 Strong ... ...
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Parker v. Gladden
... ... Brooks v. Gladden, 226 Or. 191, 195, 358 P.2d 1055, cert. den. 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263 (1961); Strong v. Gladden, 225 Or. 345, 348, 358 P.2d 520 (1961); Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Or.L.Rev. 337 (1960) ... ORS 138.530 provides that post-conviction relief shall be granted only when one or more of the following grounds is established: ... '(a) A ... ...
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Penrod v. Cupp
... ... This court, having previously indicated that the question was open, Grenfell v. Gladden, 241 Or. 190, 192, 405 P.2d 532 (1965), cert. denied, 382 U.S. 998, 86 S.Ct. 588, 15 L.Ed.2d 486 (1966), approved the practice in Bekins v. Cupp, 274 ... ORS 138.540(2); see Strong v. Gladden, 225 Or. 345, 348, 358 P.2d 520 (1961); Newton v. Cupp, 3 Or.App. at 438-439, 474 P.2d 532. In the same act, the legislature took pains ... ...