389 U.S. 128 (1967), 16, Mempa v. Rhay

Docket Nº:No. 16. Argued October 11-12, 1967
Citation:389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336
Party Name:Mempa v. Rhay
Case Date:November 13, 1967
Court:United States Supreme Court

Page 128

389 U.S. 128 (1967)

88 S.Ct. 254, 19 L.Ed.2d 336

Mempa

v.

Rhay

No. 16. Argued October 11-12, 1967

United States Supreme Court

Nov. 13, 1967

CERTIORARI TO THE SUPREME COURT OF WASHINGTON

Syllabus

Petitioner in No. 16 pleaded guilty with the advice of court-appointed counsel to the offense of "joyriding" and was placed on probation for two years. The imposition of sentence was deferred under Washington State law. On the ground that petitioner had thereafter been involved in a burglary, the prosecutor, about four months later, moved to have petitioner's probation revoked. At the revocation hearing, petitioner was not represented by counsel, was not asked about his previous court-appointed counsel, or if he wanted counsel. He acknowledged his involvement in the alleged burglary. A probation officer testified without cross-examination that, according to his information, petitioner had been involved in the burglary and had previously denied participation. The court, without further questioning petitioner, thereupon revoked his probation and, in accordance with state law, imposed the maximum sentence of 10 years, but stated that it would recommend to the parole board that he serve only one year. Six years later, petitioner sought a writ of habeas corpus in the State Supreme Court claiming that he had been denied the right to counsel at the proceeding at which his probation was revoked and sentence imposed. The court denied the petition. In No. 22, petitioner was convicted of second degree burglary following his guilty plea entered with the advice of his retained counsel, and was placed on probation for three years, imposition of sentence being deferred. Over a year later, he was arrested for forgery and grand larceny allegedly committed while he was on probation. At the expiration of a week's continuance of the probation revocation hearing granted to enable petitioner to retain counsel, petitioner appeared without counsel and informed the court that he had retained an attorney who was supposed to be present. After a short wait, the court proceeded with the hearing in the absence of counsel and without offering

Page 129

to appoint counsel. The probation officer gave hearsay testimony that petitioner had committed the acts of forgery and grand larceny, whereupon the court revoked probation and imposed the maximum sentence of 15 years on the previous second degree burglary conviction. A year later, petitioner filed a habeas corpus petition with the State Supreme Court, claiming a denial of the right to counsel at the combined probation revocation and sentencing proceeding. The court denied the petition.

Held: The Sixth Amendment, as applied through the Due Process Clause of the Fourteenth Amendment, requires that counsel be afforded to a felony defendant in a post-trial proceeding for revocation of his probation and imposition of deferred sentencing. Pp. 133-137.

(a) The time of sentencing is a critical stage in a criminal case, and counsel's presence is necessary to ensure that the conviction and sentence are not based on misinformation or a misreading of court records. Townsend v. Burke, 334 U.S. 736 (1948); Gideon v. Wainwright, 372 U.S. 335 (1963). Pp. 133-134.

(b) Though, in the State of Washington, the trial judge is required at the time of sentencing to impose the maximum term, the actual length of that term to be served being determined by the parole board, the judge and prosecutor are required to recommend the length of time to be served and to supply the board with information about the crime and the defendant, and the marshaling of facts in connection with these functions requires the aid of counsel. P. 135.

(c) The services of counsel at the deferred sentencing stage are necessary to ensure that certain rights, such as that of appeal, are seasonably asserted, and to afford the defendant the substantial assistance which may be necessary in various other situations at that stage. Pp. 135-136.

No. 16, 68 Wash.2d 882, 416 P.2d 104; No. 22, reversed and remanded.

Page 130

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

These consolidated cases raise the question of the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation.

Petitioner Jerry Douglas Mempa was convicted in the Spokane County Superior Court on June 17, 1959, of the offense of "joyriding," Wash.Rev.Code § 9.54.020. This conviction was based on his plea of guilty entered with the [88 S.Ct. 255] advice of court-appointed counsel. He was then placed on probation for two years on the condition, inter alia, that he first spend 30 days in the county jail, and the imposition of sentence was deferred pursuant to Wash.Rev.Code §§ 9.95.200, 9.95.210.1

About four months later, the Spokane County prosecuting attorney moved to have petitioner's probation

Page 131

revoked on the ground that he had been involved in a burglary on September 15, 1959. A hearing was held in the Spokane County Superior Court on October 23, 1959. Petitioner Mempa, who was 17 years old at the time, was accompanied to the hearing by his stepfather. He was not represented by counsel, and was not asked whether he wished to have counsel appointed for him. Nor was any inquiry made concerning the appointed counsel who had previously represented him.

At the hearing, Mempa was asked if it was true that he had been involved in the alleged burglary, and he answered in the affirmative. A probation officer testified without cross-examination that, according to his information, petitioner had been involved in the burglary and had previously denied participation in it. Without asking petitioner if he had anything to say or any evidence to supply, the court immediately entered an order revoking petitioner's probation, and then sentenced him to 10 years in the penitentiary, but stated that it would recommend to the parole board that Mempa be required to serve only a year.2

In 1965, Mempa filed a pro se petition for a writ of habeas corpus with the Washington Supreme Court, claiming that he had been deprived of his right to counsel at the proceeding at which his probation was revoked and sentence imposed. The Washington Supreme Court denied the petition on June 23, 1966, by a vote of six

Page 132

to three. Mempa v. Rhay, 68 Wash.2d 882, 416 P.2d 104. We granted certiorari to consider the questions raised. 386 U.S. 907 (1967).

Petitioner William Earl Walkling was convicted in the Thurston County Superior Court on October 29, 1962, of burglary in the second degree on the basis of his plea of guilty entered with the advice of his retained counsel. He was placed on probation for three years, and the imposition of sentence was deferred. As conditions of his probation, he was required to serve 90 days in the county jail and make restitution. On May 2, 1963, a bench warrant for his arrest was issued based on a report that he had violated the terms of his probation and had left the State.

On February 24, 1964, Walkling was arrested and charged with forgery and grand larceny. After being transferred back to Thurston County, he was brought before the court on May 12, 1964, for a hearing on the petition by the prosecuting attorney to revoke his...

To continue reading

FREE SIGN UP