Schreck v. Cupp , 32 Or. App. 605 ( 1978 )

SCHWAB, C. J.

Petitioner appeals from an order of the post-conviction court which denied him the relief he sought. The issues as framed by petitioner’s second amended petition are:

"vm

"That Petitioner’s imprisonment was and is illegal and the proceeding as set forth above resulted in the substantial denial of the Petitioner’s rights as follows:

"A. That Petitioner was denied due process of law under the Fourteenth Amendment to the Constitution of the United States by reason of his conviction being based on his guilty plea, which was not knowingly voluntarily made.

"B. That Petitioner was denied his right to counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 11 of the Constitution of the State of Oregon in that his counsel were incompetent for they failed to prepare an adequate defense.

"IX

"That Petitioner was denied due process of law by the trial court’s failure to allow him to withdraw his guilty plea prior to sentencing.”

Petitioner and one Terrie Knight were charged with burglary. Ms. Knight retained an attorney who had previously represented her and shortly thereafter petitioner also retained him. That attorney associated another attorney and the two acted as co-counsel. Not guilty pleas were entered for both parties. After a considerable amount of plea bargaining which was not dispositive, Knight went to trial and was convicted. Prior to her sentencing, further discussions took place as a result of which the district attorney stated that if the defendant pled guilty, he would not recommend a prison sentence for Knight. The defendant thereafter entered a plea of guilty prior to the sentencing of Knight. The plea was accepted only after a thorough inquiry by the trial judge who concluded by admonishing the petitioner that "* * * once done this is a permanent act and you can’t change your mind.” When petitioner responded that he so understood, the judge accepted his plea of guilty.

A few days later, after Knight had been given a sentence of probation, petitioner appeared for sentencing before a judge other than the one who had accepted his plea of guilty. When petitioner’s case was called, the attorney who appeared with him presented a written motion on behalf of himself and co-counsel to withdraw as counsel for petitioner and requested that the sentencing be postponed. At the same time he indicated that petitioner wished to withdraw his guilty plea. The court stated it would grant the motion to withdraw as counsel after the sentencing, "* * * and then if the plea was not properly taken and should be set aside, then the sentence will be set aside, also, but he is in custody, and there aren’t any motions before the Court, as far as I know, regarding the withdrawal of a guilty plea * *

Discussion followed with respect to the plea bargain, including a statement by the district attorney that it included "a sort of informal suggestion about what position we were going to take with respect to Terrie Knight” — namely, he would not ask for a prison term, that he had lived up to that understanding and was prepared to live up to the rest of the bargain. Petitioner was then sentenced. No further hearing was held.

The record amply supports the post-conviction judge’s finding that the petitioner had not proven that his plea of guilty was not knowingly and voluntarily made. Indeed, the record strongly supports the contrary. This disposes of petitioner’s contention contained in paragraph VIH A of petitioner’s second amended petition, supra. The finding also disposes of paragraph VIH B. Counsels’ trial preparation is not relevant when there is no showing that trial preparation or lack of it in any way influenced the entry of the guilty plea.

As for paragraph IX of the petition, it is sufficient to note that only constitutional error is cognizable in a post-conviction proceeding — and it is not constitutional error for a sentencing judge to refuse to set aside a guilty plea when the judge who accepted the guilty plea was satisfied that the plea was knowingly, understanding^ and voluntarily made and such has been determined by the post-conviction judge to be the actual fact. If the sentencing judge had heard petitioner’s motion to withdraw his guilty plea, she would have heard evidence only on the issue of whether the plea was knowingly, understanding^ and voluntarily made and then ruled on the motion accordingly. That is precisely what has happened in the post-conviction court. The petitioner has now had his day in court on his motion to withdraw his guilty plea. The fact that his motion had been denied does not make the ruling any less binding.

Affirmed.