Morgan v. Rhay

• Decision Date: 28 May 1970
• Docket Number: No. 40432,40432
• Citation: 470 P.2d 180,78 Wn.2d 116
• Parties: Application of a Writ of Habeas Corpus of William Lee MORGAN, Petitioner, v. B. J. RHAY, as Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Respondent.
• Court: Washington Supreme Court

Page 116

78 Wn.2d 116

470 P.2d 180

Application of a Writ of Habeas Corpus of William Lee

MORGAN, Petitioner, v. B. J. RHAY, as Superintendent of the Washington State

Penitentiary at Walla Walla, Washington, Respondent.

No. 40432.

Supreme Court of Washington, Department 1.

May 28, 1970.

William Lee Morgan, pro se.

Slade Gorton, Atty. Gen., Olympia, Lee D. Rickabaugh, Asst. Atty. Gen., for respondent.

PER CURIAM.

On January 2, 1968, in Clallam Couny, Washington, the petitioner entered a plea of guilty to the offense of unlawful possession of narcotic drugs, a felony. He was sentenced to serve a term of not more than 20 years in a state correctional institution. Thereafter, he filed a petition in this court seeking a writ of habeas corpus, alleging that, in the proceedings leading up to his sentence, he had been denied the right to counsel, that his guilty plea had been coerced, and that he was denied the right of trial by jury. This court, by order, referred the petition to the Superior Court for Clallam County for an evidentiary hearing as to whether, at the time of his arraignment, plea and sentence, petitioner was indigent and/or whether he knowingly and voluntarily waived his right to counsel.

Pursuant to the order of reference, a hearing was held at which petitioner appeared personally and through court appointed counsel. At the conclusion of the hearing the superior court entered findings of fact to the effect that the petitioner was not indigent at the time of his initial appearance before that court, that he thereafter waived his right to counsel, and that he voluntarily entered his plea of guilty to the offense charged.

The basic facts, by and large, are virtually undisputed.

On or about October 26, 1967, petitioner, a 25-year-old with less than a ninth grade education, was released on parole from confinement in the state reformatory on a prior Clallam County conviction of grand larceny. He returned to Clallam County. At this time he was indebted to a local finance company on a long overdue note amounting to approximately $600. The co-signers of the note, apparently his father and mother-in-law, as well as petitioner, were being pressed for payment. Petitioner was also obligated to make child-support payments. On or about November 1, 1967, he obtained a job in a local mill, where he earned approximately $500 before his arrest in mid-December, which earnings were applied on his obligations, his living expenses and the acquisition of a 1960 Chevrolet worth about $100.

On December 16, 1967, petitioner was arrested on the narcotics charge. His automobile was impounded. He had $102.94 in his possession when he was booked into the county jail. On December 17, 1967, he authorized withdrawal of approximately $90 from his cash on hand for payment of the towage and impound charges on his car and an outstanding grocery bill. He then gave a power of attorney to his mother-in-law authorizing sale of his automobile, the proceeds to apply on the finance company account. Fifty-one dollars from the $90 withdrawal was subsequently returned to petitioner's fund at the county jail. The car later sold for $100, the proceeds going to petitioner's finance company debt.

On December 18, 1967, petitioner was first brought before the superior court on the narcotics charge. He stated he wished to be represented by an attorney. When asked if he had funds or assets with which to pay an attorney he replied that he did not. The deputy prosecuting attorney then asked about his automobile. Petitioner said he had signed a power of attorney and the car was no longer his. Without further inquiry concerning the make, vintage or value of the automobile or any additional colloquy, the court then peremptorily informed petitioner:

Well, you'll have to revoke that power of attorney and get the car transferred back into your name, because the court will not appoint an attorney for you under those circumstances.

Petitioner was then returned to the county jail.

Based upon petitioner's statement to the trial judge that he was without assets with which to employ counsel, the prosecuting attorney filed a perjury charge against him. The record indicates also, though not conclusively, that at some stage of the proceedings a reference may have been made to petitioner's susceptibility to an habitual criminal status based upon his prior convictions and the narcotics charge. In this latter vein, the deputy prosecuting attorney testified that if any such discussion took place it did not rise to the dignity of a threat, but rather was interposed in the hope that realization of the seriousness of his course of criminal conduct might tend to keep him out of trouble in the future.

On January 2, 1968, after indicating to the deputy prosecuting attorney that he had not revoked the power of attorney in connection with his automobile and that he was willing to proceed without counsel, the petitioner was again brought before the court. After affirmatively responding to a question from the trial court regarding the prosecuting attorney's assertion that he was willing to proceed without counsel, the petitioner was presented with a prepared form of waiver which he signed. Thereafter, and without further interrogation by the trial court before or after his plea, the petitioner entered a plea of guilty to the narcotics charge. Arraignment on the perjury charge was deferred, and is still pending. On January 8, 1968, petitioner was sentenced.

We cannot agree with the...