State v. Allen, 40121
| Decision Date | 05 December 1968 |
| Docket Number | No. 40121,40121 |
| Citation | 75 Wn.2d 17,448 P.2d 332 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Gordon M. ALLEN, and Rudolph Metsger, also known as Richard L. Jones, Appellants. |
Muscek, Adams, Swayze & Baker, Thomas M. Baker, Jr., Allan L. Overland, Tacoma, for appellants.
Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma for the State.
This is another criminal appeal in an age of free appellate review for all indigents. We find it largely frivolous. Both appellants have filed one or more briefs, each containing a myriad of assignments of error, almost entirely devoid of merit.
Respective attorneys, at the request of this court, have filed briefs and have, in the highest tradition of the profession, argued those assignments of error which they believed their clients would want to have presented and which, in their judgment, contained some arguable merit. Each counsel has, however, filed a motion to withdraw as counsel in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967).
Since four assignments of error appear worthy of comment, a short factual recitation becomes necessary.
Appellant Richard L. Jones, also known as Rudolph Metsger, had been convicted of two crimes which were felonies under the laws of the state of Washington, to wit: (1) First degree murder in Del Norte County, California, on April 2, 1952, and (2) robbery in Pierce County, Washington, on November 17, 1965.
Appellant Gordon M. Allen had been convicted in the state of Washington of second degree burglary on December 11, 1962, and robbery on April 8, 1966.
Appellants were jointly charged in the Superior Court for Pierce County with the felony crime of escape, committed on January 19, 1966. At the arraignment both pleaded 'not guilty' of the charge. On June 29, 1966, they asked and were permitted, in the presence of counsel, to change their pleas to 'guilty', at which time the prosecutor agreed to dismiss, and subsequently did dismiss, all other criminal charges Then pending against each appellant, attempted escape and two counts of assault. Actual sentence was postponed at that time. Within a few days thereafter the prosecutor filed a supplemental information charging the appellants with the status of habitual criminals. On December 11, 1967, at the commencement of trial on the supplemental information, appellants asked to withdraw their guilty pleas to the escape charge on the grounds that they had 'understood' that no further charges would be filed in the event they changed their pleas to the charge. They do not now contend, however, that the prosecutor specifically promised not to file the habitual criminal proceedings.
Appellants assign error to the failure of the trial court to permit a change of plea to the charge of escape. The trial judge heard the evidence and found that there had been no conduct or promises on the part of the prosecutor which had prejudiced the rights of the appellants, and that they had in fact waived their right to withdraw their guilty pleas. We have reviewed the record, as is our duty, and find ample and convincing evidence to support the trial court's finding. State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964); State v. Burgess, 71 Wash.2d 617, 430 P.2d 185 (1967). We further find that this issue was decided adversely as to the appellant Allen. In denying his petition for a writ of habeas corpus, No. 39814, on December 29, 1967, this court held:
The Petitioner's plea of 'guilty' would not appear to have been coerced or the result of duress, he at all times having had an attorney; his plea of 'guilty' having been made in open Court; he having had an opportunity, in open Court, to withdraw said plea and not having done so; and he having received the benefits of such plea, agreements having been acknowledged in open Court, by the dismissal of 3 Other felony charges.
Such reasoning also applies to appellant Jones. Consequently, we find this assignment of error without merit.
The second assignment of error worthy of mention is that the evidence at the trial was insufficient as a matter of law to establish the appellants as the same persons who had pleaded guilty to escape and had the prior records of which each was accused.
That the appellants were the same persons who had pleaded guilty to escape was established by the direct testimony of the judge who received and entered their 'guilty' pleas on June 29, 1966. That each had been previously convicted as charged was established by a comparison of fingerprints made either at the time of their...
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State v. Johnson
...cases on their facts have dealt with applicability of the "60-day rule" set by CrR 3.3 and its predecessors. See State v. Allen, 75 Wash.2d 17, 20, 448 P.2d 332 (1968); State v. Persinger, 62 Wash.2d 362, 364, 382 P.2d 497 (1963). Since a habitual offender proceeding is properly viewed as p......
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State v. Johnston, s. 2046--I
...in which the defendant is not told his guilty plea might be followed by the filing of habitual criminal proceedings. In State v. Allen, 75 Wash.2d 17, 448 P.2d 332 (1968), each of two defendants had two prior felony convictions at the time he was charged with felony escape, attempted escape......
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Welfare of Hall, In re
...for an appeal, as counsel has done here, but should also outline arguments which might be made from the facts. Cf. State v. Allen, 75 Wash.2d 17, 17-18, 448 P.2d 332 (1968) (attorneys seeking to withdraw "have filed briefs and have, in the highest tradition of the profession, argued those a......