Washington v. Johnson

• Decision Date: 23 February 2000
• Citation: 165 Or. App. 578,997 P.2d 263
• Parties: Kevin WASHINGTON, Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.
• Court: Oregon Court of Appeals

997 P.2d 263

165 Or. App. 578

Kevin WASHINGTON, Appellant, v. Dan JOHNSON, Superintendent, Snake River Correctional Institution, Respondent.

(97-07-29030-M; CA A103669)

Court of Appeals of Oregon.

Argued and Submitted January 10, 2000.

Decided February 23, 2000.

Bob Pangburn argued the cause and filed the brief for appellant.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

LANDAU, P.J.

In this action for post-conviction relief, petitioner appeals a summary judgment dismissing his claims and requiring him to pay $975 in attorney fees. He contends that the trial court erred in entering summary judgment for the state because there was a genuine issue of fact as to whether he voluntarily entered into his stipulated sentence agreement. He also contends that the court lacked authority to require him to pay attorney fees. We agree as to the latter contention, but not as to the former. We therefore reverse the portion of the judgment awarding attorney fees and otherwise affirm.

The following facts are not in dispute. Petitioner was charged with aggravated murder, first-degree robbery, first-degree burglary, and second-degree assault, and a jury found him guilty of those charges. Following receipt of the verdict, petitioner negotiated a stipulated sentencing agreement. Under that agreement, the state agreed not to seek the death penalty, and petitioner agreed to a sentence of life imprisonment with the possibility of parole and a sentence of 36-months imprisonment to run consecutively. As a condition of the agreement, petitioner agreed to the following waiver:

"Having been fully informed by his attorneys of the sentencing options available in this case and having been fully informed of possible legal and constitutional challenges to both the jury verdict and the possible sentences, [petitioner] specifically waives any legal or constitutional objections to pretrial proceedings, rulings by the court, his trial, the jury verdict, his conviction, and to the sentence he will receive based on this stipulation. This waiver is intended to eliminate the possibility of any future litigation regarding the defendant's pretrial motions, his trial, conviction, entry into this agreement or sentencing. It includes all existing or future claims, known or unknown, and all types of judicial or other review, including but not limited to all claims for post-conviction relief or federal habeas corpus relief."

The court engaged in a colloquy with petitioner, and, after testing petitioner's understanding of the stipulation, it accepted the agreement and sentenced petitioner according to its terms.

On April 9, 1997, petitioner initiated this action for post-conviction relief, alleging that his trial counsel was constitutionally inadequate in that counsel did not explain to him adequately the terms and conditions of the sentencing stipulation. He requested, and was given, court-appointed counsel. The state moved for summary judgment, offering an affidavit of petitioner's trial attorney attesting to the attorney's explanation of the terms of the stipulation and a transcript of the trial court's colloquy with petitioner. The state argued that the affidavit and transcript proved conclusively that petitioner had been informed fully about the nature of the stipulation and that any contention that petitioner would not have entered into the stipulation had he been better informed is simply not credible. Petitioner opposed the motion, offering testimony that contradicted the affidavit of his trial attorney as to the extent of the explanation of the stipulation. Petitioner, however, offered no testimony or argument that, had he been better informed about the stipulation, he would not have entered into it. The trial court allowed the state's motion and, on request of the state, required petitioner to pay $975 in court-appointed attorney fees.

On appeal, petitioner first argues that the trial court erred in entering summary judgment in favor of the state, because the summary judgment record reflects a...