DeBolt v. Cupp , 1974 Ore. App. LEXIS 792 ( 1974 )

THORNTON, J.,

specially concurring.

I concur in the result but am unable to agree in all respects with the analysis by which the prevailing opinion appears to conclude that petitioner could have raised the constitutionality of the sexually dangerous offender law on direct appeal in the 1961 proceeding after having pleaded guilty to the sodomy charge.

As I read ORS 138.050 and the prior decisions of this court,^① it is my understanding that the only question which the appellate court is authorized to consider on direct appeal after a plea of guilty is “whether an excessive fine or excessive, cruel or unusual punishment not proportionate to the offense has been imposed.” ORS 138.050.

If this is correct, then petitioner was entitled to raise the constitutionality question for the first time in the post-conviction court.

To me the statement quoted in the prevailing opinion from State v. Dixon, 238 Or 121, 122-23, 393 P2d 204 (1964), viz., “* # * A sentence may also he attacked at any time if the statute under which it is imposed is unconstitutional * * *,” even on direct appeal after a plea of guilty, is in conflict with the express provisions of ORS 138.050.

① State v. Middleton, 2 Or App 70, 465 P2d 913 (1970); State v. Kabachenko, 2 Or App 202, 465 P2d 891, Sup Ct review denied (1970); State v. Lammon, 2 Or App 205, 465 P2d 490, Sup Ct review denied (1970); State v. Brudos, 3 Or App 239, 471 P2d 861, Sup Ct review denied (1970); State v. Gardner, 3 Or App 486, 475 P2d 92 (1970); State v. Wickenheiser, 3 Or App 509, 475 P2d 422 (1970); and State v. Slopak, 3 Or App 532, 475 P2d 421 (1970).