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Storms v. Cupp

April 9, 1973

GEORGE WESLEY STORMS, APPELLANT,
v.
CUPP, RESPONDENT



Appeal from Circuit Court, Marion County. Jena V. Schlegel, Judge. No. 77441.

J. Marvin Kuhn, 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.

Schwab, Chief Judge, and Langtry and Fort, Judges.

Schwab

Petitioner Storms is imprisoned under a sentence imposed upon his conviction for burglary not in a dwelling, former ORS 164.240. The conviction was affirmed on appeal. State v. Storms, 7 Or App 365, 489 P2d 1152 (1971), Sup Ct review denied (1972). Storms then filed a petition for post-conviction relief which alleged that he had been denied effective assistance of counsel on appeal. From the denial of his post-conviction petition, Storms brings this appeal.

Prior to his trial, petitioner moved to suppress certain evidence which had been seized pursuant to a search warrant. The motion was denied and petitioner was subsequently convicted. He appealed his conviction, but appellate counsel did not assign as error the denial of the motion to suppress.

At the hearing on this petition, Storms testified that he had requested appellate counsel to raise the issue on appeal. Counsel was not asked whether he recalled such a request. In any event, counsel testified that he did not raise the issue because, in his judgment, the lower court ruling was correct and the issue had no merit.

Petitioner did not allege in his post-conviction petition nor does he argue to us that counsel's assessment of the merit of the issue was incorrect. The post-conviction record does not disclose the facts or circumstances surrounding the search and seizure, the motion to suppress, or even whether any of the evidence seized was introduced against him at trial. His position rests on the proposition that a criminal defendant is entitled to "'full, appellate review' on all issues that could be raised on appeal if the defendant requests that said issues be raised," regardless of the merit of said issues. He relies on Anders v. California, 386 U.S. 738, 87 S Ct 1396, 18 L Ed 2d 493, rehearing denied 388 U.S. 924 (1967); Douglas v. California, 372 U.S. 353, 83 S Ct 814, 9 L Ed 2d 811 (1963); Shipman v. Gladden, 253 Or 192, 453 P2d 921 (1969).

These cases hold that "[t]he due process right to assistance of counsel requires more than a pro forma representation * * *." Shipman v. Gladden, supra, 253 Or at 198.

In the Anders case, court-appointed counsel refused

to proceed with his client's first appeal because he found no merit in it. The court held that effective assistance of counsel on appeal means the right to have one's lawyer place before the reviewing court all points which might arguably support a reversal of the conviction, in order that the indigent client might be ...


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