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Curtis v. Cupp

July 16, 1973

WILLIE B. CURTIS, APPELLANT,
v.
CUPP, RESPONDENT. LEONARD JAMES IRVING, APPELLANT, V. SULLIVAN, RESPONDENT



Appeal from Circuit Court, Marion County. Duane R. Ertsgaard, Judge. Nos. 78352, 78228.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellants.

William R. Canessa, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

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

Langtry

These cases present two questions: (1) Whether inadvertent failure of court-appointed counsel to file a timely appeal from the dismissal of a petition for post-conviction relief is a denial of the "due process" and "equal protection" guarantees of the Fourteenth Amendment to the U.S. Constitution, entitling petitioners to relief; and (2) whether a second Post-Conviction Relief Act proceeding is the proper means to seek such relief.

Petitioner Curtis is serving a life sentence from a Multnomah County conviction for assault with a dangerous weapon with intent to rob. No appeal was taken from his conviction. He thereafter filed a petition for post-conviction relief pursuant to ORS 138.510 to 138.680, challenging the validity of his sentence, with the state Public Defender as his attorney. The defendant demurred, relying on our opinion in Lerch v. Cupp, 9 Or App 508, 497 P2d 379, Sup Ct review denied (1972). The demurrer was sustained and the petition was dismissed. Appeal from this dismissal was inadvertently overlooked.

Curtis filed a second petition under the Post-Conviction Relief Act, incorporating his first petition by reference and alleging his counsel's failure to file that appeal, and prayed for his release "* * * or such further relief as to the Court seems just and equitable in the premises." The defendant demurred and the trial court sustained on the ground that "* * * the Petition fails to state facts sufficient to justify the exercise of jurisdiction by this Court under ORS 138.510 to 138.680." Petitioner appeals from an order dismissing his petition upon his representation that he did not wish to replead.

Petitioner Irving is also imprisoned. He had entered a plea of guilty to a charge of unarmed robbery and was placed on probation, imposition of sentence being suspended. When he entered a plea of guilty to another charge his probation was revoked and he was sentenced to seven years on the unarmed robbery charge. No appeal was taken.

Irving thereafter filed a petition for post-conviction relief, challenging the validity of the revocation of his probation, with the state Public Defender as counsel. The defendant demurred to this petition, relying in part on Lerch v. Cupp, supra. The court sustained and the petition was dismissed. Appeal was inadvertently omitted.

Irving filed a second petition for post-conviction relief. He realleged the challenge made to the revocation of his probation, incorporated his original petition by reference and alleged that the Public Defender had inadvertently failed to file an appeal from the dismissal of the first petition, thus denying petitioner his right to appeal. He prayed for his release "* * * or such further relief as to the Court seems just or equitable in the premises."

Upon motion by defendant the portion of the petition that challenged the probation revocation was stricken on the ground it had been contained in the previous petition and was therefore irrelevant. The incorporation of the first petition by reference was not stricken. Defendant demurred to the remainder of the petition and the demurrer was sustained upon the same ground relied upon in ...


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