ORS 138.620(2) provides that, in post-conviction proceedings, "the burden of proof of facts alleged in the petition shall be upon the petitioner." Petitioner, citing Boag v. State of Oregon, 44 Or. App. 99, 605 P.2d 304 (1980), and Heuer v. Cupp, 23 Or. App. 592, 543 P.2d 45 (1975), argues, however, that, when the record is silent as to the waiver of a constitutional right, this court has placed the burden of proof on the state, contrary to the statutory allocation. In support of this proposition, he points to the following language in Boag:
Therefore, if the record of the court of conviction is silent, a valid waiver of constitutional rights will not be found from it alone. That state must prove either a valid waiver or that petitioner had knowledge of his rights. Heuer v. Cupp, 23 Or. App. 592, 593, 543 P.2d 45 (1975). Thus, where the validity of a guilty plea is attacked in a post-conviction proceeding, it must be shown that the defendant knowingly waived his rights to trial by jury and confrontation of witnesses, and his privilege against self-incrimination.
The state must prove either a valid waiver or that petitioner had knowledge of his rights. Heuer v. Cupp, 23 Or. App. 592, 593, 543 P.2d 45 (1975). Thus, where the validity of a guilty plea is attacked in a post-conviction proceeding, it must be shown that the defendant knowingly waived his rights to trial by jury and confrontation of witnesses, and his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S Ct 1709, 23 L Ed 2d 274 (1969).