Guinn v. Cupp

WARREN, J.

Petitioner moves for reconsideration of Guinn v. Cupp, 80 Or App 125, 720 P2d 1330 (1986), on the ground that we misconstrued the post-conviction court’s memorandum opinion and order. We grant the motion, withdraw our former opinion and reverse.

In 1981, petitioner was convicted by a jury of assault in the first degree and assault in the second degree. He was shackled during the trial. He appealed the convictions, alleging that his constitutional and statutory rights were violated, because his motions to dismiss charges and suppress evidence had been denied. The judgment was affirmed. State v. Guinn, 56 Or App 412, 642 P2d 312 (1982). Petitioner then sought post-conviction relief, stating three claims: (1) he was denied the assistance of effective counsel under both the state and federal constitutions; (2) his statutory and constitutional rights were denied, because he was shackled in front of the jury; and (3) the trial judge was prejudiced against him.

The problem in our previous opinion resulted because it appeared from the post-conviction court’s opinion and findings of fact that the court ruled against petitioner on the ineffective assistance of counsel claim. However, a closer examination of the petition for post-conviction relief, the post-conviction court’s opinion and additional clarification from the parties reveals that the ineffective assistance of counsel claim can be interpreted as being based on two grounds: (a) petitioner’s attorney did not raise the shackling issue on direct appeal; and (b) he did not file a petition for review in the Supreme Court. The post-conviction court ruled against petitioner on part (b) but, contrary to a statement in our previous opinion, ruled for him on part (a). The post-conviction court combined consideration of the ineffective assistance of counsel shackling claim with the claim that the shackling violated petitioner’s constitutional rights and held for petitioner. In the additional clarification that we received from the parties, the state concedes that this is a correct interpretation.

The post-conviction court held a hearing, heard testimony and received exhibits pursuant to ORS 138.620.¹ Although the court ruled against petitioner on the issue of whether the trial judge was prejudiced against him, it overturned the conviction on the shackling issue. The court concluded that it was “satisfied that the record in this case does not establish a sufficient factual basis for the exercise of the trial judge’s discretion [to shackle the prisoner] under State v. Kessler, 57 Or App 469[, 645 P2d 1070] (1982), and the cases decided thereafter.” Rather than grant a new trial, however, the court remanded the case to the original trial judge for a hearing to determine whether there was a factual basis for the necessity of shackling.

“If the [post-conviction] petition states a ground for relief, the court shall decide the issues raised and may receive proof by affidavits, depositions, oral testimony or other competent evidence.”

On remand, the original trial judge conducted a hearing and found that there was a showing of necessity for the shackling and reinstated the conviction.²

Petitioner appeals the post-conviction court’s remand procedure and the findings of the trial court on remand. He raises five assignments of error. We find it necessary to address only the contention that the post-conviction court erred by remanding to the trial court rather than granting a new trial.

The right to be free from physical restraint at trial has long been recognized in Oregon. State v. Smith, 11 Or 205, 8 P 343 (1883). However, a trial judge has discretion to order that a defendant be shackled while in the courtroom, if there is substantial evidence of an immediate and serious risk of dangerous or disruptive behavior or escape. State v. Moore, 45 Or App 837, 609 P2d 866 (1980); State v. Glick, 73 Or App 79, 697 P2d 1002 (1985). We clarified the scope of the trial judge’s discretion and described the record that must be made in State v. Kessler, supra, 57 Or App at 473:

“An exercise of discretion is a judicial decision which must be based on an independent analysis of the factors that go into the decision. * * * [I]f the judge neither receives nor evaluates relevant information, he has not exercised judicial discretion. The trial court must make a record of the information received as a basis for the decision in order for this court to review the exercise of discretion.”

See also State v. Schroeder, 62 Or App 331, 661 P2d 111, rev den 295 Or 161 (1983). A conclusory statement by a prosecutor at the original trial that defendant presented a security risk was not sufficient for the trial court to require shackling during trial. State v. Bird, 59 Or App 74, 650 P2d 949 (1982); State v. Kessler, supra, 57 Or App at 473.

We agree with petitioner that remanding to the trial court for an evidentiary hearing and a determination of the necessity for shackling was improper. Had petitioner raised that issue on direct appeal to this court, we would have granted a new trial under the law in Kessler. Once the post-conviction court determined that an inadequate record had been made in the trial court to justify the shackling and that petitioner had been denied effective assistance of counsel by counsel’s failure to raise the issue on direct appeal, petitioner was entitled to a new trial, as a matter of law.

Motion for reconsideration allowed; former opinion withdrawn; reinstatement of conviction by trial court reversed; judgment of post-conviction court reversed; remanded with instructions to remand to trial court to grant a new trial.

1 ORS 138.620(2) provides, in part:

2 On remand, the original trial judge heard testimony that, before petitioner’s 1981 trial, the district attorney had advised him, in chambers, that petitioner was regarded by the security force at the penitentiary as a disciplinary problem, as well as a severe escape risk. Further, he had escaped in 1978 while being transported to the Marion County Courthouse and again in 1979 from a county jail. He had also been convicted of murder in California. One or more penitentiary informants had advised the penitentiary staff that petitioner was going to attempt to escape at some time during his trial.

The dissent says this hearing was “full and fair.” The original trial judge should have been apprised of facts justifying shackling and have made findings in the original trial. What he knew and what he would have then found was the issue in the post-conviction case.

The trial judge, who should have been a witness in the post-conviction case, was, in the remand hearing, ruling on an issue in which his own credibility was subject to question. Under our system, that cannot be a fair hearing.