Tucker v. Gladden

420 P.2d 625, 245 Or. 109, 1966 Ore. LEXIS 359

• Court: Oregon Supreme Court
• Decided: November 30, 1966
• Status: Published

Opinions

HOLMAN, J.

Petitioner, without being represented by counsel, pleaded guilty to an information charging him with assault and battery while unarmed, by means of force likely to produce great bodily injury. He was sentenced to serve not to exceed five years in the penitentiary, and he thereafter brought this post-conviction proceeding contending he is unlawfully confined by the defendant, who is the warden of the penitentiary.

The basis for relief advanced by petitioner is that he did not voluntarily and understandingly waive counsel and enter a plea of guilty to the charge. After a post-conviction hearing, the trial court ruled contrary to petitioner’s contention. The court therefore dismissed the proceeding and petitioner appealed from the order of dismissal. The question presented is whether there was sufficient evidence to justify the trial court’s findings.

Petitioner testified that he was an alcoholic and had been drinking several days prior to his arrest and as a result he was confused at the time of his plea; that he was not aware of the various degrees of assault; that he was unaware of the maximum sentence for the different degrees of assault; and that at the time he pleaded guilty he was under the impression that the victim was suffering from a concussion, fractured arm, fractured skull and ruptured spleen, when in fact the victim suffered only a broken nose and bruises.

There was further testimony from which the trial court could find that petitioner was 26 years of age; had completed the 10th grade in school; had twice previously pleaded guilty to felony charges where he had been represented by counsel, and in addition had appeared in court on approximately ten disorderly conduct charges. There was also evidence that petitioner was not inebriated at the time of his commission of the crime; that he was arrested on May 25 immediately after its commission and taken before a magistrate; and that he did not plead guilty until June 3. At the time of his plea he was told by the judge as follows:

am =» * y0Il have a right to have the advice and help of a lawyer to advise you about what you out [sic] to do under the circumstances, and to defend you in case you want to contest this charge in any way. And if you do not have the money with which to employ counsel and want one, it is my duty to appoint a lawyer to represent you at the county’s expense.”

Thereafter petitioner refused counsel. The information, which was read to him and of which he received a copy, charged him only with bruising-the head, face and body of the victim. Petitioner admitted he was told by the sheriff he would receive a minimum of a year and that he understood that if it were more it had to be served in the penitentiary.

After the plea of guilty and before sentencing, the following transpired:

“DISTRICT ATTORNEY: Mr. Tucker I will recite the facts of this situation to the Court, if that is satisfactory with you, and then you correct me if any of the facts I state are not right, and I will give you a chance as we go along. Is that satisfactory?

“MR. TUCKER: Yes.”

Thereafter the District Attorney told the court that the victim had suffered severe bruises and a broken nose, and in response to a question by the court stated that the maximum sentence for the offense was five years. Before sentencing, the following then took place:

“THE COURT: Mr. Tucker, I want to hear from you, if there is anything you have to say in regard to this situation.

“MR. TUCKER: No. I don’t have.”

There was adequate evidence from which the trial court could find that petitioner was sober at the time he committed the crime; that he was arrested shortly after and on the same day he committed it; and that nine days intervened between petitioner’s arrest and his plea, and that he was therefore unhampered by drink at the time of his waiver and plea.

Petitioner cannot now legitimately contend that he did not know the extent of the injuries he was charged with having inflicted on the victim. The information set them forth, and prior to the entry of his plea he was given a copy and it was read to him.

Prior to sentence petitioner learned of the maximum sentence that could be imposed, and was given an opportunity by the judge to make any remarks he wished. He did not avail himself of this opportunity to protest that he had not known the possible consequences of his plea. Prom this it can be inferred that he knew the maximum possibilities involved or that, in any event, they had no effect on his plea.

Petitioner claims he did not know of the lesser-included crimes of which a jury could have found him guilty. The important thing was whether he understood the nature of the crime to which he pleaded, and whether he was able to weigh this understanding against his own knowledge of the acts he performed and thus decide whether he was guilty. Whether he knew of some degree of the crime to which he did not plead or its maximum sentence is irrelevant.

There is nothing technical about the crime with which he was charged. Assault and battery are everyday terms of common usage and understanding by laymen. The technical, legal meaning is not substantially different from common usage. There is nothing technical or obscure about the words “great bodily injury” or “unarmed.” The trial court had sufficient basis upon which to find that a person of petitioner’s age, understanding and experience could understand, without the aid of counsel, the nature of the comparatively simple crime with which he was charged.

Matters of defense are of much greater technicality, but petitioner did not testify that he did not comprehend all possible defenses.

In our opinion there was adequate evidence from which the trial judge could find that petitioner voluntarily and understandingly waived the services of an attorney and entered his plea of guilty. This case comes within the holding in McWilliams v. Gladden, 242 Or 333, 407 P2d 833 (1965).

The judgment of the trial court is affirmed.