Mason v. Cranor

• Decision Date: 08 May 1953
• Docket Number: No. 32182,32182
• Citation: 257 P.2d 211,42 Wn.2d 610
• Court: Washington Supreme Court
• Parties: MASON, v. CRANOR.

Page 610

42 Wn.2d 610

257 P.2d 211

MASON, v. CRANOR.

No. 32182.

Supreme Court of Washington, Department 1.

May 8, 1953.

Ben F. Mason, pro se.

Willard J. Roe, Spokane, for petitioner.

Smith Troy and Rudolph Naccarato, Olympia, for respondent.

OLSON, Justice.

This is an appeal from a judgment denying a writ of habeas corpus. Petitioner, who is confined in the state penitentiary at Walla Walla, filed his application in this court. The chief justice ordered that the matter be heard in Spokane county, where the last sentences were imposed upon petitioner. He appeared at this hearing and was represented by counsel appointed by the court.

On June 21, 1939, petitioner was sentenced in King county to a maximum term of fifteen years, upon his plea of guilty to a charge of grand larceny committed March 1, 1937. He was sentenced in Spokane county on March 11, 1950, upon his conviction by a jury on four counts of the crime of forgery, and was sentenced to a maximum term of twenty years on each count, to be served concurrently.

In his answer to the application for the writ, respondent asserts that he is holding petitioner pursuant to these judgments and sentences and that they are valid.

A proceeding for a writ of habeas corpus cannot be used to review alleged trial errors. It is limited by law to those cases in which it appears that the judgment and sentence under which petitioner is confined is void on its face. Mohr v. Smith, 1946, 26 Wash.2d 188, 192, 173 P.2d 141, and cases cited; Thompson v. Smith, 1949, 33 Wash.2d 142, 143, 204 [257 P.2d 213] P.2d 525, and case cited. The judgments and sentences under which petitioner is held are not a part of the record in this proceeding. We assume that each is regular and valid on its face, and, therefore, neither is subject to collateral attack. Thompson v. Smith, supra, 33 Wash.2d at page 144, 204 P.2d 525; Scott v. Callahan, 1951, 39 Wash.2d 801, 806, 239 P.2d 333. See Pettus v. Cranor, Wash.1952, 250 P.2d 542, and cases cited; 28 Wash.L.Rev. 47, on scope of review in habeas corpus.

Petitioner contends that his application in this case removes these limitations upon the inquiry, because he pleads that rights guaranteed to him by the constitutions of the state of Washington and of the United States have been violated. He argues that the presentation of a Federal question by the pleadings, makes it the duty of this court to determine in its opinion whether or not he has been denied any right guaranteed by the constitution of the United States. RCW 7.36.130, 7.36.140, cf. Rem.Supp.1947, §§ 1075, 1085-2.

The first such right which he alleges was denied to him, rests upon his allegation that the evidence upon which he was convicted in Spokane county was obtained by an illegal search and seizure. United States constitution, amendment 4, also see Washington constitution, Art. I, § 7. This question was presented in his criminal case by his motion to suppress this evidence before the commencement of the trial. The motion was denied. Petitioner does not contend that this motion was not presented fairly. In fact, he affirmatively disavows such a claim.

By his motion to suppress the evidence, petitioner raised no more than a question of its admissibility. The fact that the ground upon which his motion was rested has its source in the constitution, does not make the question presented one which we can consider in a habeas corpus proceeding. Any error which the court might have made in connection with the motion was a trial error pertaining to the manner and form of the trial, and not to the jurisdiction of the court. See Thompson v. Smith, supra, and Wilburn v. Cranor, 1952, 40 Wash.2d 38, 240 P.2d 563, in which constitutional questions were considered and procedural questions were denied consideration.

Regardless of the action of the court upon the motion, petitioner has not attempted to support a claim that the hearing on it was obviously so unfair and unjust that he was denied due process of law, in its procedural aspect or otherwise. See Thorne v. Callahan, 1952, 39 Wash.2d 43, 58 et seq., 234 P.2d 517; In re Petrie, 1952, 40 Wash.2d 809, 812, 246 P.2d 465, and cases cited. He is entitled to but one hearing upon this issue. Due process does not require more. See Kenstrip v. Cranor, 1951, 39 Wash.2d 403, 406, 235 P.2d 467. Petitioner's contention could and should have been raised and reviewed on appeal. Having failed to do that, he cannot use it as the basis for this collateral attack upon the valid judgments and sentences under which he is held.

Petitioner contends that he could not present this question on appeal because he could not perfect his appeal from the Spokane county judgment and sentence, when, after he gave notice of appeal, he was denied leave to proceed with it in of due process of law, as contemplated by forma pauperis. An appeal is not a part the constitution. Whipple v. Smith, 1949, 33 Wash.2d 615, 618, 206 P.2d 510. The legislature has the power to regulate the right of appeal, and such regulations, when reasonable infringe upon no constitutional rights of a litigant. State v. Gundlach, 1950, 36 Wash.2d 918, 921, 221 P.2d 502.

The constitutional right of an accused to an appeal does not include, even in a capital case, the right for an impecunious defendant to require the county to defray the cost of the appellate record. State ex rel. Bird v. Superior Court, 1948, 30 Wash.2d 785, 788, 194 P.2d 374, and cases cited. A petition for allowance of the cost of the statement of facts and transcript as a pauper, under RCW 2.32.240, cf. Rem.Supp.1943, § 42-5, is addressed to the discretion of the court. State v. Perkins, 1949, 32 Wash.2d 810, 866, 204 P.2d 207, and case cited. If it is denied, the petitioner has a remedy. See the Bird case, supra, 30 Wash.2d at pages 788, 789, 194 P.2d 374. Petitioner's failure to perfect his appeal in his criminal case for the reason he advances is of no assistance to him in his effort to broaden the scope of the inquiry in this proceeding.

Petitioner further contends that he has submitted a constitutional question by pleading that the 1939 amendment to the act defining the powers of the board of prison terms and paroles, permitted that board to order the confinement of a prisoner for the maximum term of his sentence. Rem.Rev.Stat. (Sup.) § 10249-4, cf. RCW 9.95.100. He contends that such authority was not contained in the 1935 act defining the powers of the board, and that the 1939 amendment, subsequent to the date of the offense for which he was convicted in 1939, is an ex post facto enactment, contravening his right under the United States constitution, Art. I, § 10, also see Washington constitution, Art. I, § 23.

This question is within the scope of this proceeding because it might affect the duration of petitioner's detention, even though he is also held under a valid sentence imposed in Spokane county in 1950. There was no occasion to present it to the trial court when he was sentenced in 1939 or at all, until this proceeding. It did not become important to petition until he was arrested in 1950 and returned to the penitentiary for violation of his parole under his 1939 sentence.

The board had the authority to order the confinement of a prisoner for the maximum term of his sentence, and he had no right to his release before that term expired, under the 1935 act and before the 1939 amendment. Pierce v. Smith, 1948, 31 Wash.2d 52, 56, 195 P.2d 112, and case cited. The 1939 amendment did not enlarge the power of the board. It has the same power under that act. Butler v. Cranor, 1951, 38 Wash.2d 471, 473, 230 P.2d 306.

The board has no power to affect the maximum term of a sentence in any manner. Scott v. Callahan, supra, 39 Wash.2d at page 804, 239 P.2d 333. The allowance of credits for 'good time' cannot have this result. Butler v. Cranor, supra, 38 Wash.2d at page 473, 230 P.2d 306 (sentence imposed before the 1939 amendment).

The 1939 sentence imposed upon petitioner has not expired by the happening of any of the three events which control its termination: (1) an absolute pardon from the governor; (2) his death; or (3) the expiration of his maximum sentence. Scott v. Callahan, supra, 39 Wash.2d at page 804, 239 P.2d 333. The board's power to return a...