Miotke v. Gladden

443 P.2d 617, 250 Or. 466, 1968 Ore. LEXIS 579

Opinions

McAllister, j.

The petitioner, Daniel Miotke, was convicted on July 15, 1963, of rape of his wife’s daughter, ORS 163.220, and was sentenced to the penitentiary for life. The primary evidence of guilt at petitioner’s trial was a confession made by petitioner while a prisoner in the Umatilla county jail. In his post-conviction proceeding petitioner alleged that his confession was involuntary. The trial judge held to the contrary and dismissed the petition. Petitioner appeals, and challenges only the voluntariness of his confession.

ORS 138.650 provides that the scope of review by this court in post-conviction proceedings shall be the same “as that provided by law for appeals in criminal actions.” In criminal actions we may review “only as to cpiestions of law appearing upon the record.” ORS 138.220.

Footnotes

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① We have no authority in criminal actions to re-examine disputed questions of fact. State v. Moore, 194 Or 232, 243, 241 P2d 455 (1952); State v. Reynolds, 160 Or 445, 471, 86 P2d 413 (1939); State v. Kingsley, 137 Or 305, 324, 2 P2d 3, 3 P2d 113 (1931) ; State v. Wilson, 6 Or 428 (1877).

The legislative intent to limit our review in post-conviction proceedings to questions of law is further indicated by ORS 138.660, which authorized this court to summarily dismiss a post-conviction appeal which presents “no substantial question of law.” Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, 361 (1960). The statutory restriction of our review to questions of law does not, of course, prevent this court from examining the record of conviction in a criminal action or the record in a post-conviction proceeding to make certain that constitutionally acceptable standards were applied by the trial court in making its findings or drawing conclusions from the relevant facts. See Lawson v. Gladden, 245 Or 492, 422 P2d 681 (1967).

Since there was substantial evidence to support the finding of the trial court, it is binding on us. Alcorn v. Gladden, 237 Or 106, 111, 390 P2d 625 (1964). We could reverse only if we found as a matter of law from all the circumstances, including the facts as found by the trial court, that there had been a substantial denial of petitioner’s rights under the Constitution of the United States or the Constitution of the State of Oregon, or both, which rendered the conviction void. State v. Krogness, 238 Or 135, 149, 388 P2d 120, cert. den. 377 US 992, 84 S Ct 1919, 12 LEd2d 1045 (1964). There is nothing to suggest such a finding in this case.

The judgment is affirmed.

ORS 138.220 “Upon an appeal, the judgment or order appealed from can be reviewed only as to questions of law appearing upon the record.”