# Dorsciak v. Gladden

> Oregon Supreme Court · March 15, 1967 · 246 Or. 233

URL: https://www.frixlaw.com/law-library/cases/9577738

## Case

- **Full name:** ALFRED CHARLES DORSCIAK, Appellant, v. GLADDEN, Respondent
- **Court:** Oregon Supreme Court
- **Decided:** March 15, 1967
- **Citations:** 246 Or. 233; 425 P.2d 177; 1967 Ore. LEXIS 570
- **Precedential status:** Published
- **Opinion:** Dissent by Perry
- **Judges:** Perry, McAllister, O'Connell, Goodwin, Denecke, Holman, Redding
- **Cited by:** 7 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/9577738

## Opinion text

PERRY, C. J.,
dissenting.
I am unable to agree with the conclusions reached by the majority.
The evidence produced by the petitioner and the state in the post conviction hearing clearly establishes the reason the petitioner entered the plea of guilty to rape of his daughters.
The opinion of the majority first deals with the question of the voluntariness of a confession and statements made by the petitioner which results in a finding by this court that the confession and statements were involuntary.
Neither the confession nor the statements made by the petitioner were ever offered or attempted to be offered to establish his guilt. There could be, therefore, no violation of his constitutional rights under the Fifth Amendment of the Constitution of the United *246 States. The case of State v. Schwensen, 237 Or 506, 521 , 392 P2d 328 , where the confession was offered in evidence to establish gnilt, has no application.
Assuming the confession and statements were illegally obtained in violation of the petitioner’s constitutional rights, the sole question that could then be presented to the trial court as to the confession and statements is, — did he, because of such violation, waive his right to counsel and enter his plea of guilty to the crime charged?
The petitioner in his brief states “[t]here is no evidence that this tainted confession did not induce his guilty plea.”
Assuming that the confession and statements made were tainted and that the burden of proof is upon the state to establish the fact that these prior actions did not taint the waiver of counsel and the guilty plea, the petitioner’s statements at the trial clearly show that these statements of guilt previously made had no bearing upon his determination' to waive counsel and enter a plea of guilty. A search of the records in the trial court shows that petitioner never testified that his prior statements in anywise induced his later actions. He was questioned by the public defender representing him as to why he waived counsel and entered his plea and he gave the following answers:
“Q Did your entry of the guilty plea to these two charges, was that in any way influenced by the possibility of publicity, bad publicity for your daughters ?
“A Would you say that again. I didn’t hear it all.
“Q Were you trying to avoid bad publicity for your daughters by entering your guilty plea?
“A Yes, that is the thing I was trying to stop, *247 this publicity, this talk of going to court and so forth.
“Q Cross examine.
“CROSS EXAMINATION BY MR. THOMPSON:
“Q Mr. Dorsciak, you state that you were trying to stop this publicity or anything like that, of this going to court, that is correct, isn’t it?
“A Yes.
“Q Was this one of the foremost reasons for doing what you did?
“A Yes.”
His contentions in the trial court are stated in his petition as follows:
“That petitioner’s imprisonment was and is illegal, and the proceedings as set forth resulted in the substantial denial of the petitioner’s rights as follows:
“A That petitioner was denied his right to counsel under the Sixth and Fourteenth Amendments of the Constitution of the United States, and Article I, Section 11 of the Constitution of the State of Oregon, in that petitioner did not voluntarily and understandingly waive his right to counsel.
“B. That petitioner was denied due process of law under the Fourteenth Amendment of the Constitution of the United States, in that he did not voluntarily and understandingly enter a plea of guilty to the charge for which he is imprisoned.
“C. That petitioner’s right against self-incrimination was violated under the Fifth Amendment of the Constitution of the United States and the due process clause of the Fourteenth Amendment in that petitioner was not advised, nor did he know of his constitutional right to remain silent at the time his purported confession was made.”
*248 The trial court found as a fact, and this court agrees, that at all times the petitioner was advised of his right to counsel and of his right to remain silent.
The tape recording of the interview with the officers, introduced into evidence by the petitioner, discloses some of these facts and the reason in the mind of the petitioner that prompted his waiver of counsel and his plea of guilty. This occurred before the petitioner admitted to any act of rape:
“Point 11: . . . until you are arraigned and only then, just charged, whatever that charge might be ... no particulars. No particulars released until we come into open court. In other words if there’s a court battle ... I have no idea of how serious this matter could be. Well, contributing to the delinquency of a minor . . . five years . . . maximum penalty. Even so, even so . . . the girls be protected. Anywhere between nothing and life on the one and the other . . . and five years. You see we don’t give an estimate on these things ... we just don’t do it for that reason . . . (Emphasis mine)
“Dorsciak: I believe that . . . it’s a hard decision to say but it seems to me that even if it was life it would still be better. (Emphasis mine)
“Conn: It’s my concensus that . . . have any trouble proving the case and I think we have very strong substantial evidence which would be enough to prove the ease and . . .
“Dorsciak: Well I’m not, I’m not . . .
“Conn: . . . argue one way or another. If you are concerned about publicity.
“Dorsciak: I am for the girls, not for myself. I am for the girls though.
“Conn: Well, whatever your motive is for not wanting publicity this type of trial will naturally be a tremendous news item.
*249 “Dorsciak: I don’t want that for the girls. I sure don’t.
“Conn: The thing that we’re trying to find out is that if you decide that you want to avoid it the thing to do is to tell us about it and what happened . . .
“Tankersly: Well the thing of it is this, these warrants are always obtained as a result of talking to one side. Now we’ve been in this business for some time and we know that there are two sides to everything. We’d like to hear your side. Because otherwise all we can do is have an unfair . . . and naturally our opinion will be unballanced. So we’d like to have the same thing from you that we have from them.
“Dorsciak: Is it required?
“Tankersly: No.
“Conn: You don’t have to tell us a thing but we’d like to have it so that we can make a better decision. We don’t want to be unjust with a person. All we want is the truth. The bottom to all of this.
“Dorsciak: Well, like I say, the girls come first with me always. Everything I ever done I guess, I done for them. That’s why I don’t want to have any publicity. If I have to ... if I have to plead guilty to avoid that I would, very definitely.
“Conn: Well we’re certainly not wanting you to plead guilty to anything you didn’t do, by any means. That simply is not our purpose at all.
“Dorsciak: My girls were here. I might say this . . . They’re real fine girls and I don’t believe that they would lie under conditions of these and I believe that to prevent a trial, to prevent them from being involved in a trial. I’ve been wrong for a long, long time I guess, but . . .
“Conn: Do you have any . . .
“Dorsciak: You see my wife has been fighting with me for quite a while.”
*250 In Ms hearing in the trial court, petitioner’s testimony disclosed the fact that, although he had confessed to acts of rape upon his daughters, the confession was not a matter of concern to him at the time he waived counsel and entered his plea of guilty to rape. In fact, he testified he did not know that a charge of rape had or would be filed against him until he appeared in the circuit court. This is disclosed by answers to questions propounded by his counsel:
“Q Did anyone from the time of your arrest until the time you pleaded guilty tell you that you were being charged with anything but contributing?
“A Would you say that again? I didn’t hear it all.
“Q What did you understand you were being charged with when you walked in the courtroom?
“A Contributing. That is what they arrested me for.
“Q Up until the time you walked in the courtroom did anyone tell you that you were being charged with rape?
“A No, sir, not until I walked into the courtroom.
“Q When the judge or somebody else read the indictment to you in the courtroom you understood then you were being charged with rape?
“A Yes, that is what had me confused. Yes.
“Q Did you know what the maximum penalty for rape was at the time you pleaded guilty to that charge?
“A No, sir.
“Q Did you know what the maximum penalty was for contributing when you pleaded guilty?
“A No sir.
*251 “Q What did you understand that you could say when the court asked you if you had anything to say prior to time he imposed sentence?
“A There wasn’t much I could say because I had already plead guilty to contributing.
<<# * m * *
“Q What were you guilty of in regard to your daughter Charlotte?
“A I can answer that?
“THE COURT: Tes, you may.
“A I am guilty of contributing, yes.”
The trial court record is devoid of what acts petitioner committed upon his daughters that would constitute contributing to their delinquency. It could have been by having sexual relations with them, and he fully realized this fact.
As noted by the majority, whether petitioner’s waiver of counsel and his plea of guilty was tainted by his prior confession is a question of fact. State v. Keller, 240 Or 442 , 402 P2d 521 . The facts set forth are those disclosed in the petitioner’s own words, and show the true condition of his mind.
In Gladden v. Holland, 366 F2d 580, 583 (9th circuit, 1966), cited by the majority, that court stated:
“It is apparent to us from the totality of circumstances in our case that the conditions which rendered Holland’s confession involuntary had not been substantially removed at the time he entered his plea of guilty. Within two or three hours after the coerced confession had been given, a state circuit judge received Holland’s plea of guilty, entered a judgment of conviction thereon, and imposed a twenty-year sentence. He was without a friend in court. He was never out of the presence of law enforcement officers during this period.”
*252 And the circumstances most heavily relied upon are stated as follows:
“* * * the speed with which Holland was brought before the Court after a sleepless night of constant interrogation, leave no room for the State’s argument that his plea was free and voluntary. Holland’s waiver of counsel and pleas of guilty were undoubtedly affected by the physical and mental after-effects of his harrowing night; * * & »
In the matter before us, the petitioner was not harrassed by constant questioning, rushed into court or held incommunicado. He was not brought before the circuit court until four days had elapsed, and a minister had visited him in jail.
Since the issue of the tainted confession was apparently not raised in the trial court, and if it had been the only answer that could have been given would have been adverse to the petitioner, I would affirm the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577738. Public record. Not legal advice.