# McWilliams v. Gladden > Oregon Supreme Court · November 17, 1965 · 242 Or. 333 URL: https://www.frixlaw.com/law-library/cases/9542302 ## Case - **Full name:** McWilliams v. Gladden - **Court:** Oregon Supreme Court - **Decided:** November 17, 1965 - **Citations:** 242 Or. 333; 407 P.2d 833; 1965 Ore. LEXIS 606 - **Precedential status:** Published - **Opinion:** Dissent by Denecke - **Judges:** McAllister, Perry, Sloan, O'Connell, Goodwin, Denecke, Holman - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9542302 ## Opinion text DENECKE, J., dissenting. The majority and concurring opinions hold that there was evidence to sustain the trial court’s finding that the petitioner waived his right to counsel. Both opinions necessarily assume that the defendant in a noncapital case had a right to counsel in 1958. This is a post-conviction case; therefore, only a constitutional right to counsel is in issue. I, therefore, construe the opinions as extending Hamilton v. Alabama, 368 US 52 , 82 S Ct 157 , 7 L ed2d 114 (1961), and White v. Maryland, 373 US 59 , 83 S Ct 1050 , 10 L ed2d 193 (1963), to noncapital cases and holding that such an extension is retroactive, at least in a case in which a life sentence is mandatory. The other possible construction of the opinions is that in 1958 the Oregon Constitution guaranteed the right to counsel at arraignment in a case in which life imprisonment was mandatory. Cf. State v. Delaney, 221 Or 620 , 332 *349 P2d 71 , 351 P2d 85 (1960). I would concur in the first alternative. I dissent from the decision, however, in the belief that there was no evidence from which the post-conviction trial court could find the petitioner waived his right to counsel. As I read the record, the basic facts from which a waiver must be found are these: the petitioner was clearly told that he had a right to a lawyer and he stated voluntarily that he did not want a lawyer; the district attorney explained the elements of first- and second-degree murder to petitioner; the trial court may have told petitioner before he entered his plea that the mandatory punishment was life. (I will assume this was done.) In my opinion this is not enough to support a finding that the petitioner waived his right to counsel. In Von Moltke v. Gillies, 332 US 708 , 68 S Ct 316 , 92 L ed 309 (1948), the defendant had some advice from nongovernment lawyers on two occasions. She pleaded not guilty on two occasions. She received some legal advice from the FBI and then asked to plead guilty. Her plea was received although she had no lawyer at that time. She signed a written waiver of counsel. The defendant was a German countess and her husband was a university instructor. The United States Supreme Court reversed her conviction upon the ground “that the undisputed testimony previously summarized shows that when petitioner pleaded guilty, she did not have that fuíl understanding and comprehension of her legal rights indispensable to a valid waiver of the assistance of counsel.” ( 332 US at 720 ) The Court stated: “* * * We have said: ‘The constitutional right of an accused to be represented by counsel *350 invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake —is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understand-of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” ( 332 US at 723-724 ) In Moore v. Michigan, 355 US 155, 160-161 , 78 S Ct 191 , 2 L ed2d 167 (1957), the Court invalidated a conviction under a plea of guilty. It said: “However, we may also infer from the record that the Michigan courts held that even if petitioner was constitutionally entitled to the assistance of counsel he waived this right when he told the trial judge that ‘he didn’t want one, didn’t have one, he wanted to get it over with.’ The constitutional right, of course, does not justify forcing counsel upon an accused who wants none. See Carter v. Illinois, 329 US 173, 174 [91 L ed 172, 174, 67 S Ct 216 ]. But, ‘where a person convicted in a state court has not intelligently and under *351 standingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction # ? # -H* ■/? J? In People v. Chesser, 29 Cal2d 815, 178 P2d 761 (1947), the defendant repeatedly confessed the Idlling of a baby. Upon arraignment the court told the defendant of his right to have court-appointed counsel and the defendant said he did not want a lawyer or a trial and that he was ready to plead. The court told him there was a possibility of the death sentence and asked his plea, and the defendant pleaded guilty. A hearing was held upon the degree of the offense. The defendant was asked if he wanted to testify or ask witnesses questions and he refused, stating that he would like to be sent to the gas chamber. The court ordered two doctors to examine the defendant and to give their opinions as to his sanity. The defendant told the doctors that he had been drinking and could not remember the killing. The doctors reported defendant sane. The trial court found the defendant sane, that he killed the child with premeditation, and imposed the death sentence. The California Supreme Court reversed, holding that the defendant had not effectively waived his right to counsel. The court said: “* * * In a capital case where the defendant has not had the benefit of advice of counsel, and there is nothing to indicate that he understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted, the trial judge does not sufficiently perform his duty if he merely advises the defendant that he has a right to counsel and that the death penalty may he imposed.” (Emphasis added.) 178 P2d at 765 *352 As I understand, the above cases, there was no evidence from which the post-conviction court could find this petitioner knowingly waived his right to counsel, or, stated differently, no evidence to support a finding that the petitioner understandmgly entered a plea of guilty. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9542302. Public record. Not legal advice.