State v. Harvey

• Court: Washington Court of Appeals
• Writing for the Court: ARMSTRONG; PETRIE, C.J. and PEARSON
• Citation: State v. Harvey, 491 P.2d 660, 5 Wn.App. 719 (Wash. App. 1971)
• Decision Date: 15 November 1971
• Docket Number: No. 444--II
• Parties: The STATE of Washington, Respondent, v. Thomas Harold HARVEY, Appellant.

Page 719

5 Wn.App. 719

491 P.2d 660

The STATE of Washington, Respondent, v. Thomas Harold HARVEY, Appellant.

No. 444--II.

Court of Appeals of Washington, Division 2.

Nov. 15, 1971.

Fred D. Gentry of Bean & Gentry, Olympia, appointed, for appellant.

Smith Troy, Pros. Atty., Richard A. Strophy, Deputy Atty. Gen., Olympia, for respondent.

ARMSTRONG, Judge.

Thomas R. Harvey appeals from a conviction based on a plea of guilty to 3 counts of armed robbery. He was sentenced to a maximum term of 20 years on each count, each to run consecutively. Since he had a prior felony conviction and had used an unloaded but deadly weapon in the robbery incidents, the sentence created a 60-year maximum and a 22 1/2-year Mandatory minimum sentence. ¹

Three issues are raised in this appeal: (1) Was defendant competent to enter a plea of guilty without a prior mental competency hearing to determine his competency since he had been recently treated at Western State Hospital? (2) Did the deputy prosecutor's alleged promise to recommend concurrent sentences and his failure to keep that promise constitute a denial of due process? (3) Did the trial court abuse its discretion in imposing sentences that created, as a matter of statutory law, 3 consecutive 7 1/2-year mandatory minimum sentences, in view of the recent commitments for mental illness and the other circumstances of the arraignment and sentencing?

Factually, the record shows that in the fall of 1969, the defendant carried out 3 armed robberies with a deadly but unloaded weapon. On December 8, 1969, under advisement of court appointed counsel, the defendant entered a plea of guilty to all 3 counts. Prior to accepting his plea, the court advised Harvey, in the presence of his counsel, that he could have additional time to weigh the matter of his plea. Although it did not apprise him of the specific extent of the duration of the maximum term the court did inform defendant that should he plead guilty it would impose the maximum term prescribed by law; that only the Board of Prison Terms and Paroles could determine the minimum sentence; that any discussions or promises made by the prosecutor would not be binding upon the court. Further, the defendant was informed that should he plead not guilty, he would be entitled to a jury trial, to confront witnesses, that he need not testify and that court appointed counsel would be made available. The court then ordered that a Full presentence investigation be completed and provided to the court.

On the day after the arraignment the probation and parole officer mailed to the court a presentence investigation report prepared from the records of the Department of Institutions. The report was filed with the clerk of the court on December 12, 1969. On December 15, 1969, 7 days after the arraignment, the defendant was sentenced to a maximum term of 20 years on each count. The court ordered that the sentences were to run consecutively.

We shall first consider the question of whether defendant was competent to enter a plea of guilty. If he was not competent the plea would not be voluntary. To be voluntary a plea of guilty must be freely, unequivocally, intelligently and understandingly made in open court with full knowledge of his legal and constitutional rights and the consequences of his act. See In re Woods v. Rhay, 68 Wash.2d 601, 414 P.2d 601 (1966) and cases cited therein.

The issue of competency was raised by an affidavit of defendant incorporated in defendant's brief, which alleged that prior to the dates of the acts charged defendant had been in a mental hospital and had been released on leave; to his knowledge he had never been discharged from the care and control of Western State Hospital.

The affidavit cannot be considered as evidence in the case because it was not a part of the record on appeal. State v. Davis, 73 Wash.2d 271, 438 P.2d 185 (1968). We can, however, consider the affidavit as a part of defendant's brief where it raises a constitutional issue and is supported by the record.

The presentence report, filed with the clerk of the court and considered by the court in sentencing, provides in part:

On two occasions, this man has been a patient at Western State Hospital. On 2--18--59, he was voluntarily committed to Western State Hospital as a result of a suicide attempt. He was released on 3--31--59. On 9--21--69, Harvey was once again committed to Western State Hospital as a result of another suicide attempt. He was released from the hospital on 10--31--69.

There is nothing in the record to indicate what, if any, consideration was given to the mental competency of the defendant. The issue of mental competency was clearly brought to the trial court's attention by the presentence report. After detailing the defendant's past derelictions, including a felony conviction for grand larceny by embezzlement, the court stated:

The background indicates a worsening of the situation in that all of these incidents took place within a month's time, at least the ones with a deadly weapon, and I don't believe it is for this Court to take under consideration the fact these guns were not loaded.

The incidents which gave rise to the robbery charges occurred on September 19, 1969 and November 11, 1969. One of the incidents occurred 2 days before his commitment to Western State Hospital; the other 2 incidents took place 11 days after his release from the hospital.

The presentence report does not clearly indicate whether the second commitment was on a voluntary or an involuntary basis. Assuming that it was on a voluntary basis, the treatment for mental illness was so close in time to the acts charged in the 3 counts of robbery that a substantial question of possible doubt as to the competency of the accused to enter a plea of guilty was clearly brought to the attention of the trial court. Due process requires that the trial court resolve that doubt by a competency hearing to determine whether the accused was capable of properly appreciating his peril and of freely and voluntarily entering a plea of guilty to the 3 counts of robbery. See State v. Tate, 74 Wash.2d 261, 444 P.2d 150 (1968) and cases cited therein.

Defendant next contends by affidavit that the deputy prosecutor induced him to enter a plea of guilty by promising to recommend concurrent sentences on the 3 counts of robbery and failed to make such a recommendation. If this were true we would agree that defendant had been denied due process of law. If a defendant enters a plea of guilty based upon a promise of a prosecutor and ...