State v. Hensley

• Decision Date: 17 February 1944
• Docket Number: 29223.
• Citation: 20 Wn.2d 95,145 P.2d 1014
• Parties: STATE v. HENSLEY.
• Court: Washington Supreme Court

145 P.2d 1014

20 Wn.2d 95

STATE v. HENSLEY.

No. 29223.

Supreme Court of Washington

February 17, 1944

Department 1.

John Hensley was convicted of burglary in the second degree, and was sentenced to life imprisonment as an habitual criminal and he appeals.

Affirmed.

Appeal from Superior Court, Snohomish County; Charles R. Denney judge.

Wm. A Johnson, of Everett, for appellant.

Leslie R. Cooper, C. P. Brownlee, and Thomas G. McCrea, all of Everett, for respondent.

STEINERT Justice.

This is an appeal by John Hensley from a recent judgment pronouncing him guilty of the crime of burglary in the second degree adjudging his status to be that of an habitual criminal, and sentencing him to imprisonment for life in the state penitentiary.

The facts shown by the record are as follows: On January 3, 1939, an information was filed, in criminal cause number 124 of the superior court for Snohomish county, charging appellant with the commission of the crime of burglary in the second degree. On the following day, appellant was arraigned and, on being asked by the court whether he had an attorney, replied that he had not and did not desire one. In response to a further question by the court, he stated that he was ready to plead to the charge set forth in the information, and thereupon entered a plea of guilty. At the request of the prosecuting attorney, the court then judicially found the appellant guilty as pleaded and deferred sentence until the next day.

On January 4, 1939, the prosecuting attorney filed an information, in criminal cause number 125 of the superior court for Snohomish county, charging appellant with being an habitual criminal by reason of his having been convicted of four felonies, including the one set forth in cause number 124, committed during the period between February 15, 1919, and January 3, 1939. Upon the filing of that information, appellant was immediately brought into court for arraignment, and, at his request and because of his lack of funds, the court appointed an attorney to represent him and then continued the proceeding until the next day in order that the attorney might interview his client. At the same time, the court also continued until the next day the matter of sentence to be imposed in cause number 124.

On January 5, 1939, appellant through his attorney entered a plea of not guilty upon the habitual criminal charge set forth in the information filed in cause number 125. At the same time, the attorney presented a motion, in cause number 124, asking that appellant be permitted to change his plea of guilty to one of not guilty, upon the substantive charge of burglary in the second degree. The motion alleged as grounds therefor (1) that at the time of pleading guilty to that charge appellant was without counsel and had no knowledge that by such plea he was subjecting himself to the rigors of the habitual criminal statute; and (2) that he had been told that if he pleaded guilty to the accusation of burglary, no further charge would be pressed against him. The record does not disclose any affidavit in support of the motion. After argument upon the request for permission to change the plea, the motion was withdrawn.

On March 1, 1939, cause number 125, involving the habitual criminal charge, came on regularly for trial. On that day, the prosecuting attorney filed an amended information in that cause, again charging appellant with being an habitual criminal by reason of his having theretofore been convicted of four felonies, including the one set forth in cause number 124. Appellant was again arraigned and pleaded not guilty to the habitual criminal charge. On that same day, upon stipulation of the parties, the court entered an order adjudging that cause number 125 be, for all purposes, held supplementary and ancillary to cause number 124.

A jury was then selected and sworn, and the state submitted its evidence consisting of the testimony of a number of witnesses and a series of exhibits. At the close of the state's evidence, the appellant moved for a dismissal of the habitual criminal action, and, upon the denial of his motion, rested his case. The jury, after due consideration, returned a verdict of guilty upon the habitual criminal charge and, by answers to special interrogatories, found that the appellant had been convicted of each of the four offenses alleged in the amended information in cause number 125.

Appellant's motion for new trial having been denied, the court on March 17, 1939, entered judgment in cause number 125, adjudging appellant of the 'crime' of being an habitual criminal and sentencing him to life imprisonment in the state penitentiary. Appellant was thereupon committed to that institution and has been held in custody there ever since, although, as will appear a little later in this opinion, the judgment, sentence, and commitment in that proceeding were void.

On August 27, 1943, which was four and a half years after appellant's commitment upon the judgment and sentence in cause number 125, the prosecuting attorney for Snohomish county filed a petition in cause number 124, seeking to have the appellant brought Before the superior court and sentenced, in cause number 124, upon his former plea of guilty to the charge of burglary in the second degree and the jury's subsequent finding of his habitual criminal status. The basis of the petition filed by the prosecuting attorney was the fact that since the entry of the judgment and imposition of sentence upon appellant in 1939, the Supreme Court of this state had rendered a series of decisions, hereinafter cited, the effect of which established the invalidity of the judgment and sentence in cause number 125, and one of the purposes of which was to prescribe the proper procedure in such cases.

Pursuant to that petition, the superior court for Snohomish county entered an order directing that appellant be brought Before it for imposition of a proper sentence upon him on his plea of guilty of the crime of burglary in the second degree taking into consideration the subsequent adjudication of his status as being that of an habitual criminal. The appellant appeared on October 9, 1943, and, by his present attorney, who had not represented him in the earlier proceeding, again moved the court for permission to withdraw his plea of guilty to the burglary charge and substitute therefor a plea of not guilty. The motion was supported by appellant's affidavit setting forth, in substance, (1) that in the former proceedings he was entirely ignorant of his rights; (2) that he had been informed that, if he pleaded guilty to the burglary charge, he would receive extreme leniency and avoid the extreme penalty; (3) that the proper procedure with reference to habitual criminal causes was undetermined at the time that the particular proceeding was instituted against him; (4) that he had not been advised as to the true state of the law in that respect or as to the inevitable result of his entering a plea of guilty to the burglary charge; (5) that he had never had a trial in connection with the present proceeding except as to the charge of being an habitual criminal; and...