Mempa v. Rhay Walkling v. Washington State Board of Prison Terms and Paroles, Nos. 16

CourtUnited States Supreme Court
Writing for the CourtMARSHALL
Citation19 L.Ed.2d 336,389 U.S. 128,88 S.Ct. 254
PartiesJerry Douglas MEMPA, Petitioner, v. B. J. RHAY, Superintendent, Washington State Penitentiary. William Earl WALKLING, Petitioner, v. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES
Decision Date13 November 1967
Docket Number22,Nos. 16

389 U.S. 128
88 S.Ct. 254
19 L.Ed.2d 336
Jerry Douglas MEMPA, Petitioner,

v.

B. J. RHAY, Superintendent, Washington State Penitentiary. William Earl WALKLING, Petitioner, v. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES.

Nos. 16, 22.
Argued Oct. 11 and 12, 1967.
Decided Nov. 13, 1967.

[Syllabus from pages 128-129 intentionally omitted]

Page 129

Evan L. Schwab, Seattle, Wash., for petitioners.

Stephen C. Way, Olympia, Wash., for respondents.

Page 130

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 advise 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 Mumpa, 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, 87 S.Ct. 849, 17 L.Ed.2d 781 (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 probation. Petitioner then requested a continuance to enable him to retain counsel and was granted a week. On May 18, 1964, the hearing was called and Walkling appeared without a lawyer. He informed the court that he had retained an attorney who was supposed to be present. After waiting for 15 minutes the court went ahead with the hearing in the absence of petitioner's counsel. He was not offered appointed counsel and would not have had counsel appointed for him had he requested it. Whether he made such a request does not appear from the record.

At the hearing a probation officer presented hearsay testimony to the effect that petitioner had committed the acts alleged in the 14 separate counts of forgery and 14 separate counts of grand larceny that had been charged against petitioner previously at the time of his arrest.

Page 133

The court thereupon revoked probation and imposed the maximum sentence of 15 years on Walkling on his prior second degree burglary conviction. Because of the failure of the State to keep a record of the proceeding, nothing is known as to whether Walkling was advised of his right to appeal. He did not, however, take an appeal.

In May 1966 Walkling filed a habeas corpus petition with the Washington Supreme Court, claiming denial of his right to counsel at the combined probation revocation and sentencing proceeding. The petition was denied on the authority of the prior decision in Mempa v. Rhay, supra. We granted certiorari, 386 U.S. 907, 87 S.Ct. 849, 17 L.Ed.2d 781 (1967), and the cases were consolidated for argument.

In 1948 this Court held in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, that the absence of counsel during sentencing after a plea of guilty coupled with 'assumptions concerning his criminal record which were materially untrue' deprived the defendant in that case of due process. Mr. Justice Jackson there stated in conclusion,...

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1337 practice notes
  • Edwards v. Schmidt, No. 70-C-97.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 5, 1971
    ...has recently been held that a person on probation is entitled to legal assistance in a proceeding to revoke the probation. Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed. 2d 336. However, we are not aware of any judicial authority for extending rights which have constitutional stan......
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...to the states through the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed. 2d 336 (1967). It is guaranteed as well by the South Dakota Bill of Rights, S.D. Const., art. VI § 2 and § 7, and ......
  • Dreyer v. Jalet, Civ. A. No. 71-H-973
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 18, 1972
    ...387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L.Ed.2d 326 (1967); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966) (three-judge court), aff'd, 390 U.S. 333, 88 S.Ct. ......
  • Schmidt v. Foster, No. 17-1727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 29, 2018
    ...(pretrial interrogation); Townsend v. Burke , 334 U.S. 736, 740–41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (sentencing); Mempa v. Rhay , 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (deferred sentencing and revocation of probation).The sheer number and range of these cases show that ......
  • Request a trial to view additional results
1335 cases
  • Edwards v. Schmidt, No. 70-C-97.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 5, 1971
    ...has recently been held that a person on probation is entitled to legal assistance in a proceeding to revoke the probation. Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed. 2d 336. However, we are not aware of any judicial authority for extending rights which have constitutional stan......
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...to the states through the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed. 2d 336 (1967). It is guaranteed as well by the South Dakota Bill of Rights, S.D. Const., art. VI § 2 and § 7, and ......
  • Dreyer v. Jalet, Civ. A. No. 71-H-973
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 18, 1972
    ...387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L.Ed.2d 326 (1967); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966) (three-judge court), aff'd, 390 U.S. 333, 88 S.Ct. ......
  • Schmidt v. Foster, No. 17-1727
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 29, 2018
    ...(pretrial interrogation); Townsend v. Burke , 334 U.S. 736, 740–41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (sentencing); Mempa v. Rhay , 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (deferred sentencing and revocation of probation).The sheer number and range of these cases show that ......
  • Request a trial to view additional results
2 books & journal articles
  • More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital Cases.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 7, May 2022
    • May 1, 2022
    ...New York, 337 U.S. 241, 245-46 (1949)). (224.) Ramos v. Louisiana, 140 S. Ct. 1390, 1391 (2020). (225.) Id. at 1390. (226.) Mempa v. Rhay, 389 U.S. 128 (1967); Strickland v. Washington, 466 U.S. 668 (227.) Brady v. Maryland, 373 U.S. 83 (1963)(holding that the prosecution must turn over all......
  • The Effect of Attorney Type on Bail Decisions
    • United States
    • Criminal Justice Policy Review Nbr. 28-1, February 2017
    • February 1, 2017
    ...v. California, 372 U.S. 353 (1963).Gideon v. Wainwright, 372 U.S. 335 (1963).Hamilton v. Alabama, 368 U.S. 52 (1961).Mempa v. Rhay, 389 U.S. 128 (1967).Miranda v. Arizona, 384 U.S. 436 (1966)Missouri v. Frye, 566 U.S. ___ (2012).Powell v. Alabama, 287 U.S. 455 (1932).Strickland v. Washingto......

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