State v. Harris

• Decision Date: 15 December 1960
• Docket Number: No. 35198,35198
• Citation: 57 Wn.2d 383,357 P.2d 719
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Harry Reed HARRIS, Appellant.

Page 383

57 Wn.2d 383

357 P.2d 719

STATE of Washington, Respondent, v. Harry Reed HARRIS, Appellant.

No. 35198.

Supreme Court of Washington, En Banc.

Dec. 15, 1960.

Stephen J. O'Brien, Ralph Milne, Tacoma, Richard A. Hilton, Tacoma, of counsel, for appellant.

Arnold R. Zemple, Pros. Atty., Lyman T. Johnston, Everett, for respondent.

ROSELLINI, Judge.

The appellant was charged by information, in the superior court for Snohomish county, with the crime of escape. Upon his arraignment, at which he was represented by counsel, he pleaded guilty, and was sentenced to serve ten years (the maximum sentence provided by RCW 9.92.010) in the state reformatory.

His first assignment of error concerns the court's refusal of his request to change his plea, which was made immediately after the court had announced that it would not recommend a minimum sentence, but would leave the determination of that matter to the board of prison terms and paroles.

The argument advanced by the appellant's counsel in support of the request was that he had been assured by the prosecutor that both he and the court would recommend a minimum sentence, and that the circumstances of the escape and the defendant's conduct afterwards justified such a recommendation. In so arguing, counsel said:

'* * * this boy knew nothing of this escape until approximately twenty minutes before it happened. He was working in the kitchen when these fellows that took off came in, and they took him with them. He didn't want to go, but he was scared to do otherwise.'

Counsel admitted that he realized the court was not bound by the prosecutor's assurance that a minimum sentence would be recommended. He now argues that the quoted language amounted to the tender of aprima facie defense, which would justify the granting of his motion to change his plea.

The only possible defense suggested is duress. Under RCW 9.01.112, duress is a defense only where it is shown that the threats of one person have created in the mind of another a reasonable apprehension of instant death or grievous bodily harm. 'Mere fear or threat by another is not sufficient to constitute a defense.' 1 Wharton's Criminal Law and Procedure 262 § 123. In his statement to the court, counsel did not tender a defense which met the statutory requirement. He did no reveal that the appellant was threatened at all, much less threatened with instant death or grievous bodily harm.

At any time before entry of judgment, the trial court may permit a plea of guilty to be withdrawn and other plea or pleas to be substituted. RCW 10.40.175. Motions of this kind are addressed to the soumd discretion of the trial court, to be exercised liberally in favor of life and liberty. When such discretion has been exercised, the action of the trial court will not be disturbed on appeal except upon a showing of abuse of discretion. State v. Jessing, 44 Wash.2d 458, 268 P.2d 639.

The appellant does not contend that he has a constitutional right to change his plea, and he recognizes the fact that the trial court has discretion in granting such a motion. ¹

The appellant has brought to this court an affidavit of counsel in which it is stated that the court signed the judgment and sentence proffered by the prosecutor before counsel was given an opportunity to be heard. When the request to change the plea was made, the court replied, 'No. Not now.' It is the argument of the appellant that the signing of the judgment and sentence was premature and did not preclude the court from granting the request to change the plea, but that the court, thinking the request was too late, failed to exercise its discretion.

The record discloses that the court listened to the arguments of both the appellant's attorneys as to why a suspended sentence should be imposed or a minimum sentence recommended to the parole board. When the court refused to grant this request, one of the attorneys moved for permission to withdraw the plea of guilty, which the court denied.

Thereafter on the 30th day of April, the appellant was again brought before the court for the purpose of correcting the judgment and sentence entered on March 17, because it recited that the appellant appeared without counsel. At that time the appellant's attorney again moved to withdraw the plea of guilty, and the motion was again denied.

Granting the correctness of the appellant's view that the signing of the proposed judgment and sentence could have no legal effect until the judgment was pronounced, and further recognizing the merit of the appellant's complaint that the court had decided in advance what disposition it would make of his case, it still does not appear that the appellant was deprived of any substantial right by that decision, or by the premature signing of the judgment.

A general statement of the duty of the trial court, viewed liberally in favor of the defendant, is found in 14 Am.Jur. 961, § 287, and reads as follows:

'As in other cases of discretionary power, no general rule can be laid down as to when a defendant will be permitted to withdraw his plea. The decision in each case must depend to a great extent on the particular attendant circumstances. Generally, however, it may be said that the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. The least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient grounds for permitting a change of plea from guilty to not guilty. Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge, through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground it offered for going to the jury. If such a plea has been received by the court without observance of the precautions and solemnities required by law, the court should permit the plea to be withdrawn. On the other hand, if a defendant, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandingly and without fear or persuasion, the court may, without abusing its discretion, refuse to permit him to withdraw it.'

This statement is quoted in Judge Finley's dissenting opinion in the case of State v. Jessing, supra, wherein the majority upheld the denial of a request for a change of plea even though the defendant's counsel, who had been employed after the discharge of the attorney who represented defendant when the plea of guilty was entered, tendered a defense.

Here, no legal defense was tendered to the court, and it was apparent that the request for a change of plea was simply motivated by disappointment in the judge's attitude and a hope that a jury would deal more lightly with the appellant.

The court stated to the appellant and his counsel that it felt the board of prison terms and paroles had a better opportunity to investigate the circumstances of the escape and to determine whether the appellant was equally guilty with the others who had participated in the escape, and that it was the considered opinion of the court that in the case of each escapee, the matter of setting a minimum sentence should be left to the board's discretion. It is plain from the record before us that the denial of the request to change the plea was not occasioned by any misconception of the court's power and was not an abuse of discretion inasmuch as no valid reason for granting the request was presented to the court.

It is also objected that the court did not pronounce the judgment and sentence as required by RCW 10.64.010, and did not ask the appellant if he had any legal cause to show why judgment should not be pronounced against him as required by RCW 10.64.040.

It is true that the court made no formal oral pronouncement of the judgment and sentence; however, in speaking to counsel, the court stated it was 'going to give him the maximum which is ten years'; and did not ask whether the appellant had any legal cause to show why judgment should not be pronounced against him, although the judgment recites that this question was asked.

These omissions were irregularities which could have been corrected had they been called to the attention of the trial court, but no complaint was made of them at the time. We have held that even where there is a motion to vacate for failure to observe the formalities in pronouncing sentence, the denial of the motion is not error if there is no showing that the defendant was deprived of any substantial right. State v. Gallagher, 46 Wash. 2d 570, 283 P.2d 140. Here, the appellant was not deprived of any right and he was made fully aware of the nature of the judgment and sentence. He does not contend that he had any legal cause why the judgment should not have been entered, but only that the court gave him no opportunity to state any cause.

The fact that we find in this case no reason to reverse the judgment of the trial court, does not mean that we condone the action of any trial court in disregarding the statutory formalities which the legislature has seen fit to prescribe for the protection of defendants in criminal cases. While they may seem superfluous when the court feels that a defendant is fully apprised of his rights and given an opportunity to present all of his arguments and defenses, too often the failure to observe them (and also the placing of too much faith in the accuracy of prosecutors and attorneys and the consequent signing of orders without reading them) leads to unnecessary agitation of both counsel and clients and the...