Twitty v. Maass , 96 Or. App. 631 ( 1989 )

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773 P.2d 1336 (1989) 96 Or.App. 631
Catlin TWITTY, Petitioner,
v.
Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent.
No. 88-C-10357; CA A49603.
Court of Appeals of Oregon.
Petition for Reconsideration March 26, 1989. Decided May 17, 1989.
*1337 Catlin Twitty, Salem, pro se, for petition.

No appearance contra.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

On Petitioner's Petition for Reconsideration March 26, 1989.

EDMONDS, Judge.

In his petition for review, treated by us as a petition for reconsideration, petitioner correctly points out that our statement in our former opinion that he had entered a guilty plea is erroneous. Twitty v. Maass, 95 Or. App. 715, 770 P.2d 963 (1989). In fact, he was found guilty after he waived counsel.

In our former opinion, we held that the trial court did not err in dismissing petitioner's habeas corpus petition because petitioner had not established that post-conviction relief was unavailable. He argued that post-conviction relief was not available because he had raised the issue of "erroneous advice" on direct appeal and because ORS 138.550(2) therefore prevented him from again raising that same issue as a ground for post-conviction relief. ORS 138.550(2) prohibits a petitioner from asserting a ground that was asserted or could reasonably have been asserted on direct appeal.

On direct appeal, petitioner argued that the trial court erred in permitting him to waive his right to counsel and to represent himself at trial, because the court mistakenly advised him that, if he were convicted of murder, there would not be a mandatory 10-year minimum sentence. State v. Twitty, 85 Or. App. 98, 100, 735 P.2d 1252, rev. den. 304 Or. 56, 742 P.2d 1187 (1987). We rejected that argument and held that a trial court is not constitutionally obligated to explain to a defendant what the mandatory minimum sentence would be if the defendant were convicted. 85 Or. App. at 102, 735 P.2d 1252. Subsequently, the Supreme Court held in Hartzog v. Keeney, 304 Or. 57, 64, 742 P.2d 600 (1987), that appointed counsel does not render adequate assistance under Article I, section 11, of the Oregon Constitution if counsel fails to advise a defendant of the possibility of a minimum sentence under ORS 144.110(1) before he enters a plea of guilty.

Notwithstanding ORS 138.550(2), when a new constitutional principle is articulated between the time of a petitioner's direct appeal and the petition for post-conviction relief, a claim based on the new constitutional principle will be considered in the post-conviction proceeding. Addicks v. Cupp, 54 Or. App. 830, 838, 636 P.2d 454, rev. den. 292 Or. 568, 644 P.2d 1129, cert. den. 459 U.S. 842, 103 S. Ct. 94, 74 L. Ed. 2d 86 (1982); Myers v. Cupp, 49 Or. App. 691, 695, 621 P.2d 579 (1980), rev. den. 290 Or. 491 (1981); Pettibone v. Cupp, 43 Or. App. 955, 959, 607 P.2d 742 (1979), rev. *1338 den. 294 Or. 45 (1980). Post-conviction relief is still available to petitioner, and the trial court correctly held that it lacked jurisdiction.

Reconsideration allowed; former opinion adhered to.