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Stewart v. Cupp

February 12, 1973

JAMES STEWART, APPELLANT,
v.
CUPP, RESPONDENT



Appeal from Circuit Court, Marion County. George A. Jones, Judge. No. 74570.

Howard R. Lonergan, Portland, argued the cause and filed the brief for appellant.

John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Schwab, Chief Judge, and Foley and Thornton, Judges.

Schwab

Recently the United States Supreme Court held the practice of plea bargaining to be an "essential" and "desirable" part of the administration of criminal justice when "properly administered." Santobello v. New York, 404 U.S. 257, 92 S Ct 495, 30 L Ed 2d 427, 432 (1971). One element of proper administration is:

"* * * [W]hen a plea [of guilty] rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, supra, 404 U.S. at 262.

Petitioner's appeal in this post-conviction case presents the problem of applying the above-quoted Santobello rule to an involved set of facts. We note that Santobello was decided after the post-conviction court's decision in this case.

On October 11, 1968, an indictment was returned against petitioner that charged the following four counts: (1) petitioner enticed a child, Brenda Smock, into a place of concealment with intent to

commit a sex offense in violation of former ORS 167.045; (2) petitioner assaulted Brenda Smock with intent to rape in violation of former ORS 163.270; (3) petitioner was an accessory to an assault with intent to rape Brenda Smock committed by another child, Carey Richardson, i.e., petitioner induced and caused Carey Richardson to commit such an assault, petitioner thereby violating former ORS 163.270; and (4) petitioner contributed to the delinquency of a minor, Carey Richardson, in violation of former ORS 167.210.

The parties to this proceeding agree that negotiations between the district attorney and petitioner's counsel resulted in an agreement whereby petitioner would plead guilty to counts one and four of the October 11 indictment, and counts two and three would be dismissed. Petitioner's two guilty pleas were accepted. He was sentenced to five years on count one and five years on count four, the sentences to run consecutively. At the district's attorney's motion, counts two and three were then dismissed.

On July 24, 1969, the Oregon Supreme Court, in State v. Hodges, 254 Or 21, 457 P2d 491 (1969), held the contributing to the delinquency of a minor statute, former ORS 167.210, to be unconstitutionally vague. Petitioner then initiated post-conviction proceedings attacking, on the authority of Hodges, his conviction and sentence under count four of the October 11 indictment. Petitioner prevailed in the circuit court and in this court; our decision is reported sub nom Blakely v. Cupp, 2 Or App 110, 467 P2d 138 (1970).

After Blakely was decided, on April 8, 1970, a single-count indictment was returned against petitioner charging him with assault with intent to rape Brenda Smock ...


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