Petition for Writ of Certiorari — Wolberg v. Oregon

of the United States

OCTOBER TERM, 1971

—41- 335 °

No.

JOHN BYRON WOLBERG,

Vv

STATE OF OREGON,

Petitioner,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF OREGON

RAYMOND J. CONBOY

BRIAN L. WELCH

KEITH TICHENOR oo

808 Standard Plaze Building

Portland, Oregon 97204

Attorneys for Petitioner

STEVENS-NESS LAW PUB. CO. Se eae PORTLAND. ORE. 6-71

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SUBJECT INDEX

Page

Opinions Below 1

Jurisdiction 2

Questions Presented 3

Constitutional Provisions and Statutes 3

Statement of the Case 4

Reasons for Granting the Writ 10

Conclusion 12

Appendix A (Opinion of the Court of Appeals of

the State of Oregon) 13

Appendix B (Decision of the Court of Appeals of

the State of Oregon) 15

Appendix C (Decision of the Supreme Court of

the State of Oregon) 15

Appendix D (Judgment of the Court of Appeals

of the State of Oregon) 16

INDEX OF AUTHORITIES

Paze

Cases

Cole v. Smith, 344 F.2d 721 (C.A. 8, 1965)... 12

Holt v. Sarver, 309 F. Supp. 362 (E.D., Ark.

1970) 8, 12

Howard v. Smyth, 365 F.2d 428 (C.A. 4, 1966) 12

Jackson. Vv. Bishop, 404 F.2d 571 (C.A. 8, 1968) 12

Jones V. Wittenberg, 323 F. Supp. 93 (N.D.,

| ESR Aen eri sailed eme a oee ee eee 11

Powell ¥. Texas, 392 U.S. 514 (1968) :

Robinson v. California, 370 U.S. 660 (1962) _.

State v. Van Kleeck, 248 Or. 7, 482 P.2d ig

(1967) 9

United States ex rei Atterbury Vv. iid 237

F.2d 958 (C.A. 7, 1956) 11

Wright v. McMann, 387 F.2d 519 (C.A. 2,

1967) 8, 12

Constitutional and Statutory Provisions

United States Constitution, Eighth Amendment

EE er 3, 5, 10

United States Constitution, Fourteenth Amend-

ment -_ 4,5, 10

Oregon Constitution, Article I, Section 16 __._... 7,8

Be is ID, cciescastecnieeenetinaciannsensineistnneainvocnren 3

St. ¢ ie ............ 11

Oregon Revised Statutes

ORS 2.520 . §

ORS 163.250 . 4

— enna we snes ae sores ees

Su the Supreme Court

of the United States

OcTOBER TERM, 1971

No.

JOHN BYRON WOLBERG,

Petitioner,

V

STATE OF OREGON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF OREGON

The petitioner prays that a Writ of Certiorari be

issued to review the judgment of the Court of Appeals

of the State of Oregon entered in this case on April

1, 1971. 7

OPINIONS BELOW

The opinion of the Court of Appeals of the State

of Oregon, officially reported at 92 Adv. Sh. 621

(1971), is appended to this petition as “Appendix A.”

The decision of the Court of Appeals of the State

_ of Oregon, denying a petition for rehearing, officially

2

reported at 92 Adv. Sh. 9, p. [8], is appended to this

petition as “Appendix B.”

The decision of the Supreme Court of the State of

Oregon, declining to review the opinion of the Court

of Appeals, officially reported at 92 Adv. Sh. 13 [4],

is appended to this petition as “Appendix C.”

The judgment of the Court of Appeals of the

State of Oregon is appended to this petition as Ex-

_ hibit D.”

JURISDICTION

The Court of Appeals of the State of Oregon

rendered a decision an opinion in this cause on April

1, 1971. A “Petition for Rehearing” was filed on

April 20, 1971, and denied ‘by the Court of Apreals

on April 27, 1971. On May 24, 1971 a “Petition for

Review of Decision of Court of Appeals” was filed

with the Supreme Court of the State of Oregon. On

June 9, 1971, the Supreme Court of the State of

Oregon denied the Petition for Review. On June 10,

1971, the Court of Appeals of the State of Oregon

issued its mandate.

The “Petition for Rehearing” was timely filed in

the Court of Appeals, and the Petition for Review

of Decision of Court of Appeals” was timely filed

in the Supreme Court of the State of Oregon.’

‘Oregon Revised Statutes 2.520. Procedure for review of

decisions of Court of Appeals; scope of review.

(1) Any party aggrieved by a final judgment of the

Court of Appeals may petition the Supreme Court for

3

The jurisdiction of this Court is invoked under

28 U.S.C.A. § 1257(3).

QUESTION PRESENTED

Where a person convicted of a criminal offense

suffers from treatable schizophrenia of the chronic

undifferentiated type, is it cruel and inhuman treat-

ment within the proscription of the Eighth and Four-

teenth Amendments to the Constitution of the

United States to sentence the defendant to confine-

ment in the state penitentiary where, as the State

concedes, there are no facilities for treatment of the

mental disease.

CONSTITUTIONAL PROVISIONS

AND STATUTES

United States Constitution, Eighth Amendment:

review within 30 days after the date the judgment be-

comes final, by filing with the clerk and serving on the

adverse party or parties a notice stating that he peti-

tions the Supreme Court for review of the final judgment

of the Court of Appeals. The petition shall be allowed

whenever three or more judges of the Supreme Court

vote to allow it.

(2) Before petitioning the Supreme Court for ,e-

view of a final judgment of the Court of Appeals, the

party requesting the review shall file a timely petition

for rehearing with the Court of Appeals. The petition

for rehearing shall point out the errors claimed by the

petitioner to have been committed by the Court of Ap-

peals and must be filed within 20 days after the date of

the decision or within such extension of time as the court

may allow. Notwithstanding a petitioner’s failure to com-

ply with the requirements of this subsection, the Su-

preme Court may review a final judgment of the Court

of Appeals upon a showing of good caus2.

4

“Excessive bail shali nct be required, nor

excessive fines imposed, nor cruel and unusual

punshment inflicted.”

United States Constitution, Fcurteenth Amend-

ment:

“All persons bern or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property. without due process of

law; no rdeny to any person within its jurisdic-

tion the equal protection oi the laws.”

Oregon Revised Statutes 163.250. “Assault

with dangerous weapon. Any person, who is

armed with a dangerous weapon and assaults

another with such weapon, shall be punished

upon conviction by imprisonment in the peniten-

tiary for not more than 10 years, or by imprison-

ment in the county jail not less than one month

nev more than one year, or by a fine of not less

than $100 nor more than $1,000.”

STATEMENT OF THE CASE

The petitioner, who is not legally insane within

the standards imposed by the *“i’Naghten test which

applies in Oregon, pleaded yi‘ 'ty to a district at-

torney’s information chargirs im with the offense of

assault with a dangerous weapon. Oregon Revised

Statutes 163.250. The petitioner was sentenced to

5

the legal and physical custody of the Corrections Di-

vision of the State of Oregon for a term not to exceed

10 years, the maximum sentence permitted under the

Statute. The petitioner appealed upon the ground

that the sentence was, under the circumstances, cruel

ani unusual punishment within the Fighth and

Fourteenth Amendments to the Constitution of the

United States.

The petitioner suffers from schizophrenia of the

chronic undifferentiated type (Tr. 22, 34). He was

a business associate of William D. Brown a con-

tractor (Tr. 4). Brown's wife worked in this busi-

ness, and the petitioner knew her. The Browns had

and unhappy family relationship and on occasion

Brown struck his wife, a fact of which the petitioner

was aware (Tr. 13, 14). On January 15, 1970, the

petitioner and a hired criminal partner lured Brown

to a point on the Oregon coast where the two men

assaulted, beat and fired a weapon at Brown, who,

however, successfully eluded them (Tr. 4-12).

On July 31, 1970, after the petitioner had pleaded

guilty but before sentence was pronounced, the Cir-

cuit Court of the State of Oregon for Lincoln County

conducted a hearing in mitigation and sentencing in

the petitioner’s case (Tr. 1, 2). Two psychiatrists,

Dr. Henry Dixon, Jr. and Dr. Ivor Campbell, testi-

field at the hearing on mitigation of sentence. Both

agreed that the petitioner was afflicted with schizo-

phrenia (Tr. 22, 34). The petitioner is not a “socio

pathic personality,” but suffers from a true mental

illness. Dr. Campbell testified :

“I have examined many people who have been

charged with assault with a dangerous weapon

and it is my feeling that it’s only a minority of

them who are suffering from a mental illness

of this nature, psychotic mental illness. I think

the others mostly could be considered sociopaths

or psychopaths and they could carry this out

without any care for the consequences or with

the idea that they can get away with what they

are doing. This is strictly a criminal thing, and

I don’t think—I think this man is mentally ill,

his actions were criminal but I don’t think his

thinking was criminal, he was ili and sick.”

(Tr. 44)).

According to the undisputed testimony of both

psychiatrists, the petitioner’s mental disease cannot

be treated at the Oregon State Penitentiary where he

will be confined. Dr. Campbell testified:

“They are incapable of treating his problem.

In regards to handling, I think in handling they

will reduce him to medications and to subservi-

ence and there would be no treatment of his con-

dition.” (Tr. 37).

In its respondent’s brief before the Court of Ap-

peals of the State of Oregon, the Attorney General

agreed with all of the foregoing facts, including the

fact that the State’s facilities are inadequate for

treatment of the petitioner’s condition.

The physicians agreed that the petitioner’s disease

can be treated, although they differed on the prefer-

able course of treatment. Dr. Dixon, who was peti-

tioner’s treating physician, believed that “ * * * long

-— ©

7

term outpatient care with the option of inpatient

care from a medical standpoint is the most advised

medica] treatment for Mr. Wolberg” (Tr. 26). Dr.

Campbell thought that “ * * * for the benefit of all

concerned that a period of hospitalization would be

indicated té be followed by outpatient care.” (Tr. 36).

Dr. Campbell expressed the opinion that hospitaliza-

tion should be followed “‘ * * * for scme considerable

time in outpatient care” (Tr. 38).

The constitutional issues were not articulated in

the court of first instance. In his “Appellant’s Brief”

filed in the Court of Appeals of the State of Oregon

the “Question Presented was stated as follows:

“Is the sentence imposed upon defendant

cruel and unusual and not proportionate to the

offense in violation of Article I, Section 16 of

the Constitution of Oregon, and Amendments

VIII and XIV of the Constitution of the United

States?” (App. Br., p. 2).

The appellant’s brief continued with the following

statement under the heading “Point and Authori-

ties” :

“The sentence to confinement imposed in this

case was cruel and unusual and not proportionate

to the offense in violation of Article I, Section

16 of the Oregon Constitution and Amendments

VIII and XIV of the Constitution of the United

States. [citing cases]” (App. Br., p. 4).

Under the heading “Argument,” appellant’s brief

contained the following statements:

“Mr. Wolberg has appealed that sentence as-

8

serting that its imposition in this case is cruel

and unusual and not proportionate to the offense

in violation of Article I, Section 16 of the Oregon

Constitution and Amendments VIII and XIV of

of the Constitution of the United States. Appel-

late courts of both the federal government and

the State of Oregon have held that even though

a sentence is imposed within the statutory maxi-

mum, it may nevertheless be so disproportionate

to the offense as to fall within the constitutional

inhibition against cruel and inhuman punish-

ment, [citing cases]. Likewise, appellate courts

have held that what constitutes ‘cruel and un-

usual punishment’ is to be considered in the light

of developing civilization and not in the light of

what might have been considered cruel an in-

human punishment in earlier years. [citing

cases] So it has been held that a cruel or unusual

punishment can be inflicted not only by an un-

conscionable penalty imposed by statute, but also

by an inhumane execution of a permissible pen-

alty imposed under a constitutionally permissible

statute. [citing cases]

“Tt has been held that facts and circum-

stances and attitudes of the inmate are relevant

factors for consideration in determining whether

punishment constitutes cruel and unusual punish-

ment, Wright v. McMann, 257 F. Supp. 739

(D.C., NY, 1966), and that the circumstances

of the confinement itself were characterized by

conditions and practices so bad as to be shocking

to the conscience of reasonably civilized people

can cause punishment to be ‘cruel and unusual

punishment.’ Holt v. Sarver, 300 F. Supp. 825

(D.C., Ark., 1969); 309 F. Supp 362 (D.C.,

Ark., 1970).” (App. Br. pp. 5, 6)

9

The foregoing quotations from the “Argument”

of the appellant’s brief were followed by a lengthy

discussion of the petitioner’s mental disease and the

inadequacy of the State prison facilities to treat this

disease (App. Br. 8-9).

The decision of the Court of Appeals of the State

of Oregon contains the following statements:

“The trial court sentenced the defendant to

10 years’ imprisonment, and this appeal was

from that sentence upon the ground that it is

cruel and unusual punishment.

“This claim is based upon psychiatric opinions

indicating that the defendant is schizophrenic

and that there are no facilities available in the

state prison system for the treatment of his con-

dition.

“A review of the record indicates that the de-

fendant does indeed suffer from a mental dis-

order. It also discloses that he engaged in bizarre

attempts, almost successfuly, to kill his business

partner, and that he is capable of going to great

lengths to accomplish such a result. This comes

within the rule of State v. Van Kleeck, 248 Or 7,

432 P2d 173 (1967).

“The sentence which the trial court imposed

was within the limitations of law and we cannot

conclude that the trial court was wrong in its

assessment thereof.” (Appendix A, infra, p. 13)

State v. Van Kleeck, 248 Or. 7, 482 P.2d 173

(1967), holds that a sentence of 25 years in the peni-

tentiary imposed as a result of criminal acts which

were products of a mental illness, was proper as

10

against the defendant’s claim on appeal “. . . that

the sentence was invalid because it was in violation

of the state and federal constitutional provisions pro-

hibiting cruel and unusual punishment and the equal

protection clause of the Fourteenth Amendment,” and

as against the defendant’s contention on appeal that

the sentence “. . . was in violation of the Eighth

Amendment to the Federal Constitution (prohibiting

cruel and unusual punishment) because the sentence

was imposed as punishment for an illness.” (248 Or.

at p. 7).

Accordingly, it would appear that the Court of

Appeals of the State of Oregon considered the peti-

tioner’s constitutional claims to be timely, and that

it considered and rejected those claims.

REASONS FOR GRANTING THE WRIT

The petitioner suffers from schizophrenia, a

mental illness that is capable of treatment. The Ore-

gon State Penitentiary, where the petitioner will be

confined under the court’s sentence, has no facilities

for treating this disablity, as the Attorney General of

the State of Oregon candidly admits. One of the phy-

sicians called as a witness testified that treatment at

the State penitentiary would consist of drugging the

petitioner into a condition of “subservience” (Tr. 37).

Although there is a surprising lack of authori-

ties which consider the issue, we believe that twen-

tieth century views of criminal justice forbid the sen-

tencing of a physically or mentally diseased defendant

~~ Sao

11

to confinement in an institution where no facilities

exist for treatment of his illness. The issue is, briefly

stated, whether it is cruel and unusual punishment to

sentence a mentally diseased defendant to confine-

ment where no facilities exist for treatment. The

federal question is one of importance, and has not

been decided by this Court.

In Jones v. Wittenberg, 323 F. Supp. 93 (N.D.,

Ohio, 1971), the United States District Court held,

in a suit under the Federal Civil Rights Act of 1871,

42 U.S.C. § 1983, that detention of persons “who

either are or may be confined” to the county jail of

Lucas County, Ohio, constituted cruel and unusual

punishment where the facilities were grossly sub-

standard and, among other things the TaN « con-

dition existed:

“Health facilities are primitive. A nurse is

on duty in the day time, who supervises the pris-

oners’ medication. There is a jail physician who

comes two or three afternoons a week, and is on

call at other times, but often cannot be reached.

* * * There is no infirmary for prisoners who

are ill, and only two small offices or examining

rooms, with little or no equipment, for use by a

nurse, a doctor and dentist. If a prisoner is ill

enough, he may be removed to one of the local

hospitals.” (323 F. Supp. at 97).

Although, in the past, the federal courts have

been reluctant to interfere with prison management

even though brutal treatment and violation of con-

stitutional guarantees are alleged, see e.g., United

States ex rel Atterbury v. Ragen, 237 F.2d 958 (C.A.

12

7, 1956) ; Cole v. Smith, 344 F.2d 721 (C.A. 8, 1965),

the current of authority is now the other way. Jack-

son V. Bishop, 404 F.2d 571 (C.A. 8, 1968); Wright

v. McMann, 387 F.2d 519 (C.A. 2, 1967); Howard

v. Smyth, 365 F.2d 428 (C.A. 4, 1966); Holt v.

Sarver, 309 F. Supp. 3624(E.D., Ark., 1970).

The issue is not, as in Powell v. Texas, 392 U.S.

514 (1968) and Robinson v. California, 370 U.S.

660 (1962), whether the petitioner may validly be

convicted and confined because of his schizophrenic

condition. Assuming that confinement is proper, the

issue is whether he may be sentenced to an institution

where, as all concede, no facilities exist for treatment

of the illness. The issue would be even clearer if, in-

stead of a mental disease, the petitioner were suffer-

ing from a serious physical disability which the state

penal institutions have no facilities to treat.

CONCLUSION

For the reasons set forth in this Petition, the

Court should accept certiorari to determine whether

a state may, consistent with due process, confine a

person suffering from mental disease in an instiution

which has no facilities for treatment of the disease.

RAYMOND J. CONBOY

BRIAN L. WELCH

KEITH E. TICHENOR

Attorneys and Counsel for

Petitioner, John Byron Wolberg

13

APPENDIX A

IN THE COURT OF APPEALS OF THE STATE

OF OREGON |

Department 2.

STATE OF OREGON, Respondent v.

JOHN BYRON WOLBERG, Appellant.

Appeal from Circuit Court, Lincoln County.

COURTNEY R. JOHNS, Judge

Argued and submitted March 17, 1971.

Brian 1. Welch, Portland, argued the cause for

appellant. With him on the brief were Pozzi, Wilson

& Atchison, Portland.

Jacob B. Tanzer, Solicitor General, Salem, argued

the cause for respondent. With him on the brief was

Lee Johnson, Attorney General, Salem.

Before SCHWAB, Chief Judge, and LANGTRY and

Fort, Judges.

AFFIRMED.

PER CURIAM

The original indictment against the defendant

was for assault with intent to kill. He pleaded guilty

to a reduced charge, by information, of assault with a

dangerous weapon. ORS 163.250. The trial court sen-

tenced the defendant to 10 years’ imprisonment, and

this appeal is from that sentence upon the ground

that it is cruel and unusual punishment.

14

This claim is based upon psychiatric opinions in-

dicating that the defendant is schizophrenic and that

there are no facilities available in the state prison

system for the treatment of his condition.

Our review of the record indicates that the de-

fendant does indeed suffer from a mental disorder. It

also discloses that he engaged in bizarre attempts,

almost successfully, to kill his business partner, and

that he is capable of going to great lengths to accom-

plish such a result. This case comes within the rule of

State v. Van Kleeck, 248 Or 7, 432 P2d 173 (1967).

The sentence which the trial court imposed was

within the limitations of law and we cannot conclude

that the trial court was wrong in its assessment

thereof.'

Affirmed.

' See ORS 179.473 and 179.476.

a

e oS OE

15

COURT OF APPEALS

April 27, 1971

State v. John Bryon [sic] Wolberg, appellant’s

petition for rehearing denied.

APPENDIX C

IN THE SUPREME COURT OF THE

STATE OF OREGON

Petitions Denied

June 9, 1971

State v. John Byron Wolberg, 92 Adv. Sh. 621.

16

STATE OF OREGON, )

Plaintif f-Respondent No. 30160

v. ORDER

ENTERING

JOHN BYRON WOLBERG, MANDATE

Defendant-Appellant

This matter coming on this 23rd day of June,

1971, the State of Oregon appearing by and through

Charles P. Littlehales, District Attorney, the plain-

tiff above-named moves the Court for entry in the

proper records of this court of the mandate of the

Court of Appeals of the State of Oregon did hereto-

fore on the 17th day of March, 1971, duly and reg-

ee ee ee One

ment in appeal of the above-entitled cause, wherein

ot iin Cis Gites Cte andes ead wall

State of Oregon was the respondent, which said judg

ment and mandate, as appears from the copy thereof

duly certified to by Edward Branchfield, Clerk of

the Supreme Court of the State of Oregon, on the

10th day of June, 1971, and hereby referred to and

made a part hereof, was and is in words and fig-

ures as follows, to-wit:

BE IT REMEMBERED that in the COURT OF

APPEALS of the State of Oregon, in the city of

Salem, on this THURSDAY, the Ist day of APRIL,

1971, the following proceedings were had:

17

STATE OF OREGON, ' No. 30160

Respondent

v. ) A from

NCOLN

JOHN BYRON WOLBERG, COUNTY

Appellant

This cause on March 17, 1971, having been duly

argued and submitted upon and concerning all ques-

tions arising upon the record and then reserved for

further considefation, and the court having fully con-

sidered all said questions as well as suggestions of

counsel in their argument and briefs finds there is

not error as alleged.

IT THEREFORE IS CONSIDERED, ORDERED

and ADJUDGED that the judgment of the court

below rendered and entered in this cause be and the

same hereby is in all things affirmed.

IT FURTHER IS ORDERED that respondent

have and recover of and from appellant its costs and

disbursements in this court taxed at $15.

IT FURTHER IS ORDERED that this cause be

remanded to the court below from which the appeal

was taken with directions to enter judgment in ac-

cordance herewith.

STATE OF OREGON, )

County of Marion, ,=

I, Edward Branchfield, Clerk of the Court of

Appeals of the State of Oregon, do hereby certify that

the foregoing copy of judgment has been by me com-

pared with the original journal entry and that it is

4 correct transcript therefrom, and of the whole of

18

such original, as the same appears of record, and in

my office and custody.

In Testimony Whereof, I have hereunto set my

hand and affixed the seal of the said Court at Salem,

Oregon, June 10, 1971.

Edward Branchfield,

Clerk of Court of Appeals, State of Oregon

TO THE CIRCUIT COURT

OF THE STATE OF OREGON,

For the County of Lincoln

You are hereby commanded that of the above

judgment order of our Court of Appeals you cause

proper entry to be made upon the records of your

court, as of a judgment therein, and proceed to final

determination and execution thereof, as to the said

order of our Court of Appeals, and to law and justice

shall appertain.

In Witness Whereof, I have set my hand and

affixed the seal of said Court at Salem, Oregon,

June 10, 1971.

Edward Branchfield,

Clerk of Court of Appeals, State of Oregon

IT IS HEREBY CONSIDERED, ORDERED

AND ADJUDGED that said mandate and judgment

heretofore made anc entered by the Court of Appeals

of the State of Oregon on the 17th day of March,

1971, upon the appeal to that Court from this Court

of the above-entitled cause, is duly made and entered

IEE "ECs

19

of record in the proper journals and records of this

Court.

IT IS FURTHER ORDERED that the Sheriff

of Lincoln County, Oregon, forthwith deliver to the

Division of Corrections at Salem, Oregon, the said

John Byron Wolberg, defendant-appellant, and that

he be there imprisoned during the term of the sent-

ence heretofore imposed by this Court by said order

of the 31st day of July, 1970, to-wit: for a period

without limitation as to time not to exceed ten years.

Dated this 23rd day of June, 1971.

s/ Courtney R. Johns, Judge

STATE OF OREGON, ) on

County of Lincoln, ) ;

I, Alberta M. Bryant, County Clerk and ex-officio

Clerk of the Circuit Court and of the County and

State aforesaid, do hereby certify that the foregoing

copy of Order Entering Mandate dated June 23,

1971 — State of Oregon, Plaintiff-Respondent vs.

John Byron Wolberg, Defendant-Appellant, Circuit

Court No. 30160, has been compared by me with the

original and that it is a correct transcript therefrom,

and of the whole of such original Order as above men-

tioned as the same appears on file and of record at

my office in my care and custody.

IN TESTIMONY WHEREOF, I have hereunto

set my hand and affixed the seal of the said Court

this 25th day of June, 1971.

Alberta M. Bryant, Clerk.

By Helen Gardner, Deputy