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Dorsey v. Cupp

April 2, 1973

THOMAS A. DORSEY, APPELLANT,
v.
CUPP, RESPONDENT



Appeal from Circuit Court, Marion County. Jena V. Schlegel, Judge. No. 76552.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

William R. Canessa, 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.

Fort, Judge. Schwab, Chief Judge. Langtry, Judge, dissenting.

Fort

This is an appeal from a post-conviction order denying the petitioner relief from his entry of a plea of guilty. He appeals.

The record establishes that the interrelationship of two problems underlies this appeal. One is the effect of plea bargaining leading to a guilty plea; the other, that of adequacy of counsel.

The post-conviction court made an express finding of fact:

"2. Trial counsel for petitioner advised him that if the sole basis of his guilty plea was the denial of his Motion to Suppress, he could have the denial of that motion reviewed through post-conviction proceedings."

The state here does not contend that this advice was not erroneous.*fn1 It points out, however, that the post-conviction court also found that the petitioner pleaded guilty not only in reliance on that advice, "but also in hopes of receiving a lighter sentence and to avoid return to Idaho for a probation violation."

Accordingly, it concludes, as did the post-conviction court, that he was not prejudiced by his attorney's erroneous advice, and thus, under the rule of Dixon v. Gladden, 250 Or 580, 444 P2d 11 (1968), the judgment should be affirmed.

This case is further complicated, however, by the fact that the evidence is uncontradicted that prior to entry of the plea, a substantial plea bargaining process was carried on between the state and petitioner's counsel. It is also uncontradicted that in the course of this the deputy district attorney expressly advised petitioner's counsel that under the law the petitioner would not, provided he pleaded guilty solely on that ground, waive his right to have the correctness of the trial court's rulings on the motions to suppress evidence reviewed in the post-conviction court. Obviously such advice was given to petitioner's counsel with full awareness that it would influence the petitioner in his decision to plead guilty, since it related to the only legal consideration upon which at that point he might base an appeal.

Counsel also testified that he relied on that


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