Wakefield v. Rhay, 35081

• Decision Date: 20 October 1960
• Docket Number: No. 35081,35081
• Citation: 57 Wn.2d 168,356 P.2d 596
• Court: Washington Supreme Court
• Parties: Application for a Writ of Habeas Corpus of Robert WAKEFIELD, Petitioner, v. B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, Respondent.

Page 168

57 Wn.2d 168

356 P.2d 596

Application for a Writ of Habeas Corpus of Robert WAKEFIELD, Petitioner, v. B. J. RHAY, as Superintendent of Washington State

Penitentiary at Walla Walla, Washington, Respondent.

No. 35081.

Supreme Court of Washington, En Banc.

Oct. 20, 1960.

Smithmoore P. Myers, Gonzaga University School of Law, Spokane, for appellant.

John J. O'Connell, Atty. Gen., Stephen C. Way, Rembert Ryals, Asst. Attys. Gen., for respondent.

HUNTER, Judge.

The petitioner, Robert Wakefield, hereinafter called the defendant, was charged with the crime of grand larceny by embezzlement, and upon a plea of guilty, judgment was entered. He was sentenced to the state reformatory at Monroe and later transferred to the state penitentiary at Walla Walla. This matter comes before us on a petition for a writ of habeas corpus, as an original petition filed in this court.

The question raised by the petition is whether the defendant was properly advised of his right to counsel and whether he competently and intelligently waived such right.

At the defendant's arraignment, on May 26, 1947, in the superior court for Yakima county, the following occurred:

'By the Court: Q. Is your true name Robert Wakefield? A. Yes, your honor.

'Q. How old are you? A. Thirty.

'Q. Do you understand the nature of the charge? A. I do now.

'Q. You say you do? A. Yes, sir.

'Q. Have you talked to an attorney? A. No, sir.

'Q. It is your privilege before entering a plea to have an attorney. A. I don't think so.

'Q. You don't want an attorney? A. No, sir.

'Q. Are you ready now to enter your plea? A. Yes, sir.

'Q. What is your plea; guilty or not guilty? A. Guilty.'

'The Court: A plea of guilty will be received. * * *'

In In re Wilken v. Squier, 1957, 50 Wash.2d 58, 309 P.2d 746, 748, this court said:

'The right of an accused to appear and defend by counsel is expressly guaranteed by Art. I, § 22 (amendment 10) of the state constitution. In furtherance of this constitutional guarantee, RCW 10.01.110 and 10.40.030 imposes upon the court three duties: (1) to inform the defendant that it is his right to have counsel before being arraigned; (2) to ascertain whether because of the defendant's poverty he is unable to employ counsel, in which event, the court must inform the defendant that the court shall appoint counsel for the defendant at public expense if he so desires; (3) to ask whether the defendant desires the aid of counsel.

'* * *

'The plain mandate of our statute imposes a duty on the court to inform a defendant of his constitutional right to have the aid of counsel. Without this information or prior knowledge of his right, a defendant cannot waive his right 'intelligently and competently.' Merely asking the defendant whether he wants a lawyer does not convey the information that he is entitled to a lawyer at public expense if he is an indigent person, nor does it impress upon him the importance of having legal representation if his rights are to be fully protected. Thus, an indigent defendant's waiver may be made under the mistaken impression that since he cannot afford to pay a lawyer he cannot have legal representation.'

In the instant case there is no showing that the defendant had any prior knowledge of his rights. The record discloses that the court did not ascertain whether, because of defendant's poverty, he was unable to employ counsel, and that he was not informed of his right to counsel at public expense. Thus, it is manifest that the defendant was not in possession of such knowledge as would permit him 'intelligently and competently' to waive his right to counsel. As a result, the defendant was deprived of a right guaranteed to him by Art. I, § 22, (amend- ment 10) of the state constitution. See State v. Dechmann, 1957, 51 Wash.2d 256, 317 P.2d 527; In re Friedbauer v. State, 1957, 51 Wash.2d 92, 316 P.2d 117.

The respondent argues that In re Wilken v. Squier should not be applied to the instant case because this constitutes a retroactive application of a judicial decision. We find no merit to such a contention. The defendant acquired no rights, by virtue of In re Wilken v. Squier, which he did not already have.

As an alternate basis for issuance of the writ, the defendant asserted that the information failed to state facts sufficient to charge the commission of a crime. This allegation will not be considered, because the sufficiency of the information may not be challenged by habeas corpus. In re Palmer v. Cranor, 1954, 45 Wash.2d 278, 273 P.2d 985; In re Moon v. Cranor, 1949, 35 Wash.2d 230, 212 P.2d 775.

The judgment and sentence of the superior court for Yakima county is hereby vacated with the direction that the defendant, Robert Wakefield, be remanded to the custody of the sheriff of Yakima county to answer the charge of the information, and to be dealt with by the superior court for that county according to law and in a manner consistent with the views expressed herein.

DONWORTH, FINLEY, ROSELLINI and FOSTER, JJ., concur.

ROSELLINI, Judge (concurring).

I believe that the rule which is implicit in the majority opinion is the just and proper rule in a case of this type. As I understand that rule, it is: If the record does not show that the court fully advised the defendant of his right to counsel and does not show that the defendant had prior or independent knowledge of the nature and extent of this right, it will be conclusively presumed that he did not competently and intelligently waive it.

While it is true that the burden is upon the defendant to show that he did not competently and intelligently waive his right to counsel, I do not believe that he should be required to prove a lack of knowledge on his part, for such proof would be impossible in most cases. If he can show that he was not advised of his rights, he has established a prima facie case of ignorance, and the burden shifts to the state to show that he had actual knowledge.

It would serve no useful purpose here to set forth again the reasoning which this court followed in deciding in In re Wilken v. Squier, 50 Wash.2d 58, 309 P.2d 746, that an indigent defendant has a right, under the constitution, to be advised of his right to counsel. I think it should be manifest that a fair trial can seldom be assured without the aid of counsel; that, as the constitutions of the United States and of this state recognize, equal justice requires that no man be denied counsel simply because he cannot afford it; and that the right of an indigent to have an attorney paid by the state if he desires one, is an empty right if he has no knowledge of it.

There is in the dissenting opinion an objection that we paraphrased RCW 10.40.030 in the Wilken case; but I do not think the paraphrasing departs in any way from the spirit of the statute. The rights of an indigent defendant are constitutional, and the statute reflects legislative confirmation of these rights, but they are not legislatively created.

The dissenting opinion suggests that we are holding that the trial court loses jurisdiction of the cause if it fails to advise the defendant fully of his right to counsel. I do not so understand our cases. It is true that the case is here upon a writ of habeas corpus, which contains an allegation that the defendant is being illegally held, and that the granting of such a writ ordinarily produces the release of the defendant. But the statute (RCW 7.36.130) specifically provides for the writ where it is alleged that a constitutional right of the defendant has been violated, even though he is held under a final judgment of a court of competent jurisdiction. In cases such as this, the defendant is not set free, but is ordered returned to the county in which he was convicted for a new trial. I see no jurisdictional question involved.

MALLERY, Judge (dissenting).

The petitioner specifically and unequivocally said he did not want an attorney and, thereupon, knowingly and voluntarily entered a plea of guilty to the charge of grand larceny. His incarceration since 1947 has now been invalidated upon the ground that, even though he did not desire counsel, the trial court still was compelled to make the statement to him, prior to his plea, that 'the court shall appoint counsel for the defendant at public expense if he so desires.'

The majority purport to do this under the sanction of the Federal and state constitutions and the statutes of the state of Washington. In this they are in error. No constitutional provision or statute requires the specific statements in question to be made to a defendant, and indeed, it has not been the practice to do so since territorial days.

Let us examine the constitutional provisions and statutes which the majority claim as a sanction for this innovation.

The tenth amendment to the state constitution, upon which the majority rely, provides, inter alia:

'In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases: * * *'

This constitutional provision gives a defendant the right to defend by counsel. It does not require the trial court to invariably and specifically inform a defendant that the court will appoint counsel for him at public expense after he has unequivocally said he did not desire counsel. A defendant is not compelled to defend. He can waive his right to invoke all of the above constitutional provisions and plead guilty if he wants to. The only qualification on such a waiver is that the plea be knowingly and voluntarily made in order to constitute due process of law.

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