Holbert v. Gladden

¶1This is an appeal from an order dismissing petitioner’s petition for post-conviction relief.

¶2Petitioner was convicted of knowingly uttering and publishing a forged bank cheek and on February 1, 1965, was sentenced to a term of 10 years in the penitentiary. The conviction was affirmed by this court in State v. Holbert, 242 Or 228, 408 P2d 941 (1965).

¶3On the same day that petitioner was sentenced for the principal offense the district attorney filed an information pursuant to the habitual criminal statute, ORS 168.015 to 168.090, alleging that petitioner had been convicted of three prior felonies. On April 26, 1966, a hearing was held on the information, the court found the allegations true, vacated the 10-year sentence and imposed a new sentence of 20 years under the habitual criminal statute.

¶4Petitioner appealed from the enhanced sentence and the public defender was appointed to represent petitioner on the appeal. The circuit court subsequently allowed the public defender to withdraw as petitioner’s attorney on appeal and the appeal was thereafter dismissed on October 11,1966, upon the motion of the state. Petitioner then requested this court to reinstate his appeal, which request was denied.

¶5*437On January 8, 1968, petitioner filed in the circuit court for Marion county a petition for post-conviction relief on the ground that he had been denied the right to counsel on his appeal as guaranteed under Article I, Section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States.

¶6The right to counsel on appeal was firmly established in the landmark case of Douglas v. California, 372 US 353, 83 S Ct 814, 9 L ed 2d 811 (1963). We considered at length the basis and scope of that right in Shipman v. Gladden and in Welch v. Gladden (April 30, 1969) and deem it unnecessary to repeat here what we said in those cases.

¶7Enhanced sentences imposed under ORS 168.085 are by ORS 168.090 expressly made reviewable on appeal by this court. Although the appeal from the judgment imposing the enhanced sentence was a direct appeal, the right to counsel on appeal applies with equal force to state collateral proceedings, Lane v. Brown, 372 US 477, 83 S Ct 768, 9 L ed 2d 892, 897 (1963).

¶8Douglas v. California was decided in 1963, more than three years before petitioner filed his notice of appeal from the enhanced sentence imposed in April 1966. Petitioner contends that he was deprived of his right to counsel when the public defender was permitted to withdraw as petitioner’s attorney, resulting in the dismissal of the appeal. Petitioner relies on Anders v. California, 386 US 738, 87 S Ct 1396, 18 L ed 2d 493, 498 (1967), in which the Supreme Court condemned the practice of permitting appellate coun*438sel to withdraw on his mere representation that he could find “no merit” in the appeal. The court said:

“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. ® …”

¶9It was decided in Andersthat a court may permit appellate counsel to withdraw only if (1) counsel advises the court that he finds the appeal wholly frivolous and requests permission to withdraw, and (2) accompanies his request with a brief referring to anything in the record that might arguably support the appeal, and (3) the defendant is served with a copy of the brief and allowed time to respond thereto, and (4) the court then finds, after full examination, that the case is wholly frivolous. In petitioner’s case the court permitted counsel to withdraw without finding that the appeal was frivolous. In so doing the court deprived petitioner of his right to the assistance of counsel and to the equal protection and due process guaranteed by the 'Fourteenth Amendment.

¶10The basic right involved in this case is the right to counsel on appeal established in Douglas v. California. The Supreme Court has repeatedly held that Douglasmust be applied retroactively. See Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L ed 2d 1199, 1204 (1967); McConnell v. Rhay, 393 US 2, 89 S Ct 32, 21 L ed 2d 2 (1968); and Arsenault v. Massachu*439setts, 393 US 5, 89 S Ct 35, 21 L ed 2d 5, 7 (1968).

¶11In Arsenault v. Massachusetts the court said:

“The right to counsel at the trial (Gideon v. Wainwright, 372 US 335, 9 L ed 2d 799, 83 S Ct 792, 93 ALR2d 733) on appeal (Douglas v. California, 372 US 353, 9 L ed 2d 811, 83 S Ct 814) and at the other ‘critical’ stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’

¶12Although the Supreme Court has not said expressly that Andersshould operate retroactively, it has applied Andersretroactively in Walker v. Wainwright, 387 US 236, 87 S Ct 1708, 18 L ed 2d 747 (1967), a state collateral proceeding, 188 S2d 824 (1966), and in a number of cases pending on appeal when Anderswas decided.①

¶13It is not necessary to grant a delayed appeal as we authorized in Shipman v. Gladden and Welch v. Gladden, supra. It is only necessary to reinstate petitioner’s appeal from the enhanced penalty. The order entered in this court on October 11, 1966, dismissing petitioner’s appeal from his enhanced sentence is vacated and the appeal is reinstated. The public defender is reappointed to represent petitioner in that proceeding.

¶14The judgment of the court below in this proceeding is reversed.