Thomas Patrick Schram v. Hoyt C. Cupp, Warden, Oregon State Penitentiary , 425 F.2d 612 ( 1970 )

HUFSTEDLER, Circuit Judge:

Schram appeals from an order of the District Court dismissing, without an evidentiary hearing, his petition for federal habeas relief from an Oregon judgment. (28 U.S.C. §§ 2241-2254.) He had exhausted his state remedies before he filed his petition for federal relief.¹

At issue is the constitutional validity of two prior convictions relied upon by an Oregon court to increase the penalty upon his last conviction from three years to twenty years under the provisions of Oregon's habitual offender statute. (Ore.Rev.Stat. § 168.015 et seq.)

Schram’s Oregon convictions began in 1946, when he pleaded guilty to one count of an information charging him with obtaining $20 by false pretenses. In 1948, he was convicted upon two counts of unarmed robbery following his plea of guilty to each count. In 1952, he was convicted upon one count of unarmed robbery to which he had entered a guilty plea. Finally, in 1964, he was convicted upon one count of an information charging him with burglary not of a dwelling, for which he was initially sentenced to an indeterminate three-year term in the penitentiary. Thereafter, Oregon instituted recidivist proceedings charging him with felony convictions in 1946, 1948, and 1952. The court found that Schram had three convictions prior to his 1964 conviction, vacated the three-year sentence upon his 1964 conviction, and imposed the twenty-year sentence that Schram is presently serving.

Schram then sought postconviction relief in a state court in Oregon challenging the validity of the 1946 and 1952 convictions on the grounds that he had not been represented by counsel and had not knowingly and intelligently waived counsel on either occasion and that he had not voluntarily entered the guilty pleas. An evidentiary hearing was held on his petition. Schram was the sole witness. The judge, who took Schram’s pleas and sentenced him in 1946 and 1952, had died before the hearing. The court reporter was also dead. The contemporaneous record of both the 1946 and 1952 proceedings was limited to the judgment rolls.

The judgment roll of the 1946 conviction reveals only that Schram expressed a desire for counsel. It is barren of any indication that Schram was given or had waived counsel. Schram testified that no one told him in 1946 that he had a right to be represented by an attorney at public expense or otherwise, and that he did not know about that right. Schram was indigent.

The judgment roll of the 1952 conviction contains a document entitled “Waiver, Arraignment and Plea.” It recites: “The defendant having been advised by the Court of his right to be represented by counsel, and the defendant having stated that he did not desire counsel * * * the Information was read by the District Attorney under the direction of the Court * * * and * * * defendant pleaded guilty thereto.” Nothing in the judgment roll indicated that Schram was advised specifically that he had a right to counsel at public expense. At his state evidentiary hearing, Schram testified that he was not so advised and that he did not know his right. He knew he was entitled to a lawyer if he could hire one, but neither he nor his family had the financial means to do so. He testified that no one told him about the elements of the offense, the possible defenses, or the maximum punishment for the 1952 offense. He further testified that neither his lawyer in the 1948 case nor anyone else had told him any of those things. There was no contrary evidence.

The Oregon court found the following facts: In 1946, when Schram was 23 years old, he was charged with obtaining money by false pretenses. He “was advised of his right to counsel, but he was not informed that he could have an attorney at public expense if he was without funds. The court record is incomplete and ambiguous as to defendant’s expressed wish concerning counsel. * * * The petitioner discussed the charge against him with the Klamath County Sheriff who told him he ought to plead guilty, because he would probably get only a little jail time and probation. A few days later, the petitioner again appeared in court without counsel and freely and voluntarily plead guilty to the crime of obtaining money by false pretenses. * * * He knew the consequences and meaning of pleading guilty and he knew the facts from which the charge against him arose. No one had explained to him, however, the technical aspects, possible defenses, or the elements of the crime. Petitioner hoped that since it was a first offense, the court would grant probation. Instead a sentence to the Oregon State Penitentiary for two years was imposed and ordered executed.”

With respect to the 1952 conviction, the court found that he had no counsel. “No one informed the petitioner of the several elements of the crime of unarmed robbery, nor the possible defenses thereto, nor that the maximum penalty was fifteen years in prison. Mr. Schram did not inquire about the penalty for the crime nor about the elements or defenses nor did he ask for the appointment of counsel. He was advised of his right to counsel, but he was not specifically advised that he could have counsel at public expense. However, at that time, the petitioner was aware of his right to court appointed counsel. He had had such counsel in Multnomah County in 1948.² The petitioner voluntarily, understanding^ and freely, without coercion or threats, waived his right to Grand Jury investigation.”

The court concluded that Seram’s 1952 conviction was “valid and legal,” that “the court is convinced that in 1952, despite his testimony at the hearing to the contrary, Mr. Schram knew of his right to court appointed counsel, even if he was not so advised, which he probably was, and of his other rights, and he knew that a plea of guilty was a complete admission of the charge, and that all that remained was for the court to impose sentence.” It expressed doubt about the validity of the 1946 conviction, but decided that it was unnecessary to determine the question because Schram was given the “minimum sentence allowed for three prior convictions,” and he had not challenged the validity of the 1948 conviction.

On appeal from the order denying his petition for posteonviction relief, the order was affirmed by a divided court. (Schram v. Gladden, supra, 444 P.2d 6 (4-3).) Both the majority and minority opinions recognized that Schram had no counsel in 1952 and that he had not been advised in 1952 of his right to counsel at public expense. The majority adopted the Oregon trial court’s view that Schram had the burden of proving that he was unaware of his right to court appointed counsel and that the fact that he had had court appointed counsel in 1948 adequately evidence his awareness of that right in 1952. The failure to advise him of “the nature of the crime or the range of allowable punishment” was of no moment because “the crime to which he pleaded guilty in * * * 1952 is identical with the crimes he had pleaded guilty to in * * * 1948 when he was represented by counsel.”

Mr. Justice Denecke, speaking for the dissenting justices, pointed out the absence of evidence that Schram had intelligently waived counsel and the deficiencies in the record to sustain the conclusion that he had understanding^ pleaded guilty to the 1952 charge. He challenged the foundation of the majority’s assumption that Schram had been effectively advised in 1948 by his former counsel, and he observed that even if the assumption were supported by the record, such four-year-old advice was not “a constitutional substitute for the kind of knowledge that must be imparted to any defendant before his guilty plea can be accepted.” (444 P.2d at 9.)

The federal District Court received in evidence the record of the Oregon post-conviction hearing. It conducted no evidentiary hearing of its own. The District Court found that the 1952 conviction was valid, declined to decide the validity of the 1946 conviction, and denied relief following the rationale of the majority of the Oregon Supreme Court. We reverse.

The duty of the federal habeas court is “to try the facts anew * * * in every ease in which the state court has not after a full hearing reliably found the relevant facts.” (Townsend v. Sain (1963) 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770; Fay v. Noia (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Sessions v. Wilson (9th Cir. 1966) 372 F.2d 366.)

The question whether a defendant has knowingly and intelligently waived counsel is a mixed question of fact and law. The Oregon trial court conducting the postconviction proceeding did not reliably find the relevant facts because it erroneously placed the burden on Schram in his postconviction proceedings to prove that he was unaware of his right to court appointed counsel and that he did not waive that right. The record of the 1952 conviction is silent in respect of any advice by anyone to Schram, an indigent, that he had a right to counsel supplied without cost to him. Knowledge of that right cannot be presumed from a silent record. Because the record is silent, the burden rested on Oregon, not Schram, to prove that he had been effectively advised of his right to court appointed counsel and that, in accordance with the standards of Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, he had waived that right. (Carnley v. Cochran (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 270; Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Irving v. Breazeale (5th Cir. 1968) 400 F. 2d 231; cf. Watson v. Eyman (9th Cir. 1969) 419 F.2d 1375; Molignaro v. Smith (5th Cir. 1969) 408 F.2d 795; United States ex rel. Ackerman v. Russell (3d Cir. 1968) 388 F.2d 21.) On the record before the Oregon postconviction court, the State did not meet its burden.

The State had the further burden of showing that, despite the silence of the records of the 1946 and 1952 convictions, Schram yielded his right to counsel with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishment thereunder, possible defenses to the charge and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. (Von Moltke v. Gillies (1948) 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309; Sessions v. Wilson, supra, 372 F.2d 366.) The State also failed to carry that burden in the Oregon court, and that court’s findings cannot withstand the test of Townsend v. Sain, supra, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

Upon the face of the record presented to the District Court, including the transcript of his evidentiary hearing in Oregon, Schram was entitled to habeas relief : The 1946 and 1952 convictions were constitutionally invalid and neither could have been used to enhance punishment for his 1964 offense. (Burgett v. Texas (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.) The result is that the 1948 offense could not be used to enhance the penalty for the 1964 offense. The Oregon recidivist statute forbids the use of a prior felony conviction for that purpose if the offender was “finally and unconditionally discharged from all resulting imprisonment, probation or parole more than seven years before the commission of the principal felony.” (Ore.Rev.Stat. § 168.015(4) (c).) Schram’s 1948 conviction expired for enhancement purposes not later than 1959 (a 4-year maximum term plus 7-year recivdivist limitation).

The order dismissing Schram’s habeas petition is reversed and the cause is remanded, with directions to grant the writ unless Oregon vacates Schram’s conviction upon the habitual offender proceeding not later than 60 days from the date our mandate issues.

1 . The Supreme Court of Oregon affirmed the denial of his petition for postconvietion relief in Schram v. Gladden (1968) 250 Or. 603, 444 P.2d 6.

2 . The record of the 1948 trial showed that Schram had been represented by court appointed counsel at the time he was arraigned and pleaded not guilty, that private counsel had been retained by Schram’s family and was substituted for court appointed counsel, and that Schram had thereafter pleaded guilty to the 1948 charge.