Storms v. Cupp

508 P.2d 450 (1973)

George Wesley STORMS, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon.

Argued and Submitted March 26, 1973.

Decided April 9, 1973.

Rehearing Denied May 10, 1973.

Review Denied June 26, 1973.

*451 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, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

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 P.2d 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 *452 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, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (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 P.2d 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, 453 P.2d at 924.

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 afforded "that advocacy which a nonindigent defendant is able to obtain." 386 U.S. at 745, 87 S. Ct. at 1400.

In Shipman v. Gladden, supra, the defendant was deprived of any appellate review of his conviction because his attorney failed to file timely notice of appeal. The Shipman court held that:

"* * * The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due process. This is equally true whether the negligent counsel has been appointed or retained. The `invidious discrimination' is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably negligent." 253 Or. at 199, 453 P.2d at 925.

The crucial factor in those decisions was that the defendants had been deprived of the assistance of counsel for any appellate review of their convictions. Anders and Shipman require appellate counsel to present all issues which might arguably support reversal, and to diligently process the appeal.

In short, they require that the defendant be assisted by an attorney exercising professional competence and judgment. Even the strict standards set out in Anders do not require appellate counsel to raise any issue requested by defendant regardless of merit, but only those which "might arguably support the appeal." 386 U.S. at 746, 87 S. Ct. 1396. See, Hermann, Frivolous Criminal Appeals, 47 N.Y.U.L.Rev. 701, 712 (1972).

While it might be advisable in some cases to include in appellant's brief a statement as to points defendant wishes to raise on appeal, we are not prepared to hold that failure to do so is incompetence as a matter of law, on a par with failing to timely file a notice of appeal, or refusing to proceed with an appeal at all.

The burden is on the petitioner to produce evidence supporting his claim of counsel's incompetence. Benson v. Gladden, 242 Or. 132, 407 P.2d 634, 638 (1965), cert. denied 384 U.S. 908, 86 S. Ct. 1345, 16 L. Ed. 2d 360 (1966); Cole v. Cupp, 3 Or. App. 616, 475 P.2d 428 (1970). See, State v. Abel, 241 Or. 465, 406 P.2d 902 (1965). Ordinarily, the requisite showing cannot be made without indirectly offering evidence on the merits of the issue which allegedly should have been raised on the direct appeal.

Furthermore, petitioner must not only show counsel's incompetence, but also that he was prejudiced thereby. State v. *453 Goddard, 5 Or. App. 454, 485 P.2d 650 (1971). See, Dixon v. Gladden, 250 Or. 580, 444 P.2d 11 (1968); Annotation, 74 A.L.R.2d 1390 (1960).

Having failed to do so, he is not entitled to the relief he seeks. State v. Goddard, supra. See also, People v. Degraffenreid, 19 Mich. App. 702, 173 N.W.2d 317 (1969), for an excellent discussion of this point and effective assistance of counsel in general.

Affirmed.