State v. Jessing
| Decision Date | 25 March 1954 |
| Docket Number | No. 32529,32529 |
| Citation | 44 Wn.2d 458,268 P.2d 639 |
| Court | Washington Supreme Court |
| Parties | STATE, v. JESSING. |
Brodie, Brodie & Fristoe, Olympia, for appellant.
Delbert W. Johnson, Prosecuting Attorney, Shelton, for respondent.
Our problem is to determine whether or not the trial court abused its discretion in denying defendant's motion to permit him to withdraw his plea of guilty. We shall relate the events in chronological order.
August 28, 1952: Information filed, charging defendant with crime of robbery.
August 29, 1952: Case continued two weeks to September 12, 1952.
September 12, 1952: Arraignment. Defendant appeared with his counsel, Roy A. Holland, and entered a plea of not guilty.
October 3, 1952: Case set for trial October 22, 1952.
October 15, 1952: Notice of withdrawal of Holland as attorney for defendant. Letter so advising prosecutor.
October 15, 1952: Letter, Holland to Jessing, mentioning Jessing's refusal to call at office as promised. Advised that the trial was set for October 22, 1952, and advised him to obtain another attorney at once.
October 22, 1952: Amended information reducing charge to grand larceny.
October 22, 1952: Arraignment. Defendant appeared with counsel Roy A. Holland. Prosecutor announced that defendant had agreed to plead guilty to amended information. Jury discharged. Defendant pleaded guilty. Upon request of defendant's counsel, sentencing deferred until October 31, 1952.
October 31, 1952: Defendant appeared with counsel, Roy A. Holland, for sentencing. Matter continued to January 9, 1953.
January 9, 1953: Matter continued until January 16, 1953.
January 16, 1953: Defendant appeared for sentencing with his counsel, Doane Brodie. Defendant's counsel asked for more time to investigate. Matter continued to January 30th.
January 22, 1953: Motion by defendant (through counsel, Brodie, Brodie & Fristoe) for permission to change plea from guilty to not guilty, supported by affidavits of defendant, his sister and his wife, to the effect that, on the day the offense was committed, the defendant was too intoxicated to form an intent to commit a crime.
January 30, 1953: Matter continued to February 6, 1953.
February 13, 1953: Matter came on for hearing. Defendant was sworn and testified that after Holland had served notice of withdrawal, defendant attempted to employ other counsel; that his friends prevailed upon Holland to represented him and that Holland agreed to appear with him October 22, 1952, but only for the purpose of representing him upon his entry of a plea of guilty to the reduced charged that defendant felt that he had no other choice as it would be futile to go to trial without an attorney who could adequately defend him. Matter continued to February 27, 1953.
February 17, 1953: Affidavit of Roy A. Holland stating that he had been preparing a defense for defendant, but that defendant had failed to return to his office as he had promised; that after serving the notice of withdrawal defendant's friends requested him to reconsider; that he told them he would appear only for the purpose of representing defendant at the arraignment on the reduced charge to grand larceny; that in his opinion he felt defendant should plead guilty and that under no circumstances would he represent defendant at a trial.
February 27, 1953: Order denying motion for change of plea. The court found 'no sufficient cause or reason to justify his change of plea.' Matter continued to March 20, 1953.
March 20, 1953: Judgment and sentence. It recited, with reference to the entry of the plea of guilty, 'and it appearing and the Court having been advised by the defendant that he understood the nature of the charge and was ready and willing to enter his plea, and it appearing and the Court having determined that the defendant was capable of and was exercising a free and rational choice, the defendant, he then being represented by his then counsel, Roy A. Holland, was then arraigned and entered his plea of guilty to the crime charged in the amended Information, * * *.'
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 10.40.170. Appellant's motion to withdraw his plea of guilty having been made prior to the entry of judgment, it was timely made.
Motions of this kind are addressed to the sound 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. Rose, 42 Wash.2d 509, 256 P.2d 493, and cases cited therein.
When the trial judge ruled on the motion for permission to withdraw the plea of guilty and to enter a plea of not guilty, he had the entire record before him. He had examined the affidavits of appellant, his sister, and his wife, in support of the motion. He had heard the testimony of appellant on February 13, 1953. He had examined the affidavit of Roy A. Holland, a reputable attorney, concerning his actions in appellant's behalf. With all of this knowledge, and realizing his discretion should be exercised liberally in favor of life and liberty, he was confronted with this problem: Was appellant's plea of guilty to grand larceny given while exercising a free and rational choice of either taking a chance on being convicted of robbery, or of pleading guilty to a lesser charge; or was it given under compulsion, in that he had no other choice as it would be futile to go to trial without an attorney was could adequately defend him? The trial judge knew, from the record before him, that when the motion to withdraw the plea of guilty was first made on January 22nd, it was upon the ground that on the day the offense was committed, appellant was too intoxicated to form an intent to commit a crime. The court evidently concluded that the later claim of acting under compulsion was an afterthought, and was not made in good faith. One who seeks to establish that he did not competently and intelligently waive his constitutional right to counsel has the burden of proof. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461.
From our examination of the record, we are satisfied that the trial court was justified in finding that appellant's plea of guilty to grand larceny was not given under compulsion, but rather that he, while represented by counsel, exercised a free and rational choice between taking a chance on being convicted of robbery or pleading guilty to a lesser charge. The trial court did not abuse its discretion in denying appellant's motion to withdraw his plea of guilty.
The judgment and sentence is affirmed.
Prior to the time appellant pleaded guilty to an amended information charging him with grand larceny, there had been a dispute between him and his...
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State v. Hahn
...was not competently and intelligently waived. In re Wilken v. Squier, 50 Wash.2d 58, 61, 309 P.2d 746 (1957); State v. Jessing, 44 Wash.2d 458, 461, 268 P.2d 639 (1954) (both citing iJohnson v. Zerbst, supra, 304 U.S. at 468, 58 S.Ct. at 1024-25 (habeas corpus proceeding)). The record in th......
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...(1971).[90] *fn18 State v. Hahn, 106 Wn.2d at 901, citing In re Wiken v. Squier, 50 Wn.2d 58, 61, 309 P.2d 746 (1957); State v. Jessing, 44 Wn.2d 458, 461, 268 P.2d 639 (1954), both citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 146 A.L.R. 357 (1938).[91]......
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...only on a showing that there has been an abuse of discretion. State v. Harris, 57 Wash.2d 383, 357 P.2d 719 (1960); State v. Jessing, 44 Wash.2d 458, 268 P.2d 639 (1954); State v. Rose, supra; State v. Wood, 200 Wash. 37, 93 P.2d 294 (1939): State v. Salmeier, 148 Wash. 627, 269 P. 798 (192......
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...172 P. 234 (1918). If the motion is made after judgment it is then addressed to the sound discretion of the court. State v. Jessing, 44 Wash.2d 458, 268 P.2d 639 (1954). The application to withdraw the plea after judgment and sentence is to be treated as an application to vacate the judgmen......