State v. Gray

543 P.2d 11, 23 Or. App. 516, 1975 Ore. App. LEXIS 1049

• Court: Court of Appeals of Oregon
• Decided: December 8, 1975
• Docket: No. CC-75-202 CA 4797 No. CC-75-77 CA 4798
• Status: Published

Opinions

THORNTON, J.

Defendant appeals his conviction of assault in the first degree and burglary in the second degree on the ground that the court was without jurisdiction to find him guilty since he never actually pleaded guilty.

①

Defendant was originally charged with attempted murder, with theft in the first degree and with burglary in the second degree. The prosecutor and defendant’s attorneys entered into a plea bargain whereby it was agreed that defendant would plead guilty to assault in the first degree and burglary in the second degree if the state would dismiss the attempted murder charge and the first degree theft charge.

Defendant was taken before the circuit judge who advised him of his rights. The court then “accepted” defendant’s supposed guilty plea. However, according to the record the exact question whether defendant chose to plead guilty was never put to the defendant.

On appeal defendant essentially contends that the court was without jurisdiction to find him guilty because he never pleaded “guilty” in so many words. While we do not agree with the contention that any particular phraseology is required before the court has jurisdiction to accept a plea, see, People v. Conboy, 235 NYS2d 492 (Sup Ct 1962), we do hold that the court here was without jurisdiction to convict defendant because it is not clear from the record that the defendant was intending to plead guilty at the time the court accepted his “plea.”

In the interest of conserving space we will not set forth the entire relevant portion of the transcript here. Suffice it to say that before the court accepted defendant’s “plea,” some problems caused by the absence of the original prosecutor were discussed. The court then decided to postpone the matter of a presentencing report until the absent prosecutor’s return. This discussion of postponing matters for a few days could possibly have been understood by defendant as including the formal entry of his plea, and that the discussion taking place at that time was entirely preliminary. It is therefore possible that the defendant was not aware that the time for entering a plea was at hand.

OES 135.360 provides in part as follows:

“(1) * * * [A] plea of guilty or no contest to a crime punishable as a felony shall in all cases be put in by the defendant in person in open court unless upon an accusatory instrument against, a corporation, in which case it may be put in by counsel.”

It is because of the possibility of mistake that OES 135.355 requires that specific language acknowledging guilt be used in entering a plea of guilty. Where, as here, the defendant’s intention to plead guilty is not absolutely clear from the record, we resolve the doubt in favor of the defendant. See, State v. Voshell, 247 Or 534, 430 P2d 1010 (1967).

As we pointed out in State ex rel Lucas v. Goss, 23 Or App 501, 543 P2d 9 (1975):

“* * * [W]hen a properly enacted statute is plain and unambiguous, a court may not interpret it but must enforce it as written. Fullerton v. Lamm, 177 Or 655, 163 P2d 941, 165 P2d 63 (1946). It is not within the province of the court to amend the terms of a statute because it operates unfairly in a particular instance, Bechtel v. State Tax Com., 228 Or 123, 363 P2d 1102 (1961), or to ignore it because it might not seem appropriate in a particular case, Lessig v. Conboy, 219 Or 373, 347 P2d 98 (1959).”

Reversed and remanded.

In a similar case decided November 10, 1975, entitled State v. Dean, 23 Or App 353, 541 P2d 1071 (1975), the state confessed error.