State v. Mempa, 40789
| Decision Date | 25 November 1970 |
| Docket Number | No. 40789,40789 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Jerry Douglas MEMPA, Appellant. |
Trezona, Chastek & Lorenz, Will Lorenz, Spokane, for appellant.
Donald C. Brockett, Pros. Atty., Claude Bailey, Deputy Pros. Atty., Spokane, for respondent.
This is an appeal from a denial of defendant's motion to withdraw pleas of guilty and to vacate the judgment and sentence based upon such pleas.
Defendant Jerry Douglas Mempa and a friend, Lonnie Lee Bates, were charged with second degree burglary of a dry cleaning establishment in Spokane, Washington. They were arraigned on October 7, 1968. At this time they were represented by an attorney of their choice, Gerald Bovey, a member of an established and reputable law firm experienced in the field of criminal law. Both of the accused pleaded not guilty. Bates was able to post bail, the defendant was not.
While confined in the county jail the defendant broke a window, inflicted a small wound on his arm, and claimed to have eaten a light bulb and a razor blade. He refused medical assistance and was placed in a padded cell for his own protection. Upon motion of his attorney the superior court ordered a psychiatric examination.
On October 22, 1968, the defendant and Bates were rearraigned on an amended information charging them with the additional offense of possession of stolen property, a gross misdemeanor. Again, both pleaded not guilty. On October 24, 1968, pursuant to the trial court's order, a competent psychiatrist, Dr. Sol Levy, examined the defendant and subsequently submitted a written report to the trial court, the prosecuting attorney's office and defendant's counsel.
Sometime thereafter, and before November 8, 1968, at the behest of the defendant, a conference was held in the office of the prosecuting attorney, attended by the defendant, his counsel, and a deputy prosecuting attorney. At this conference it was agreed that the burglary charge against Bates would be dismissed and the defendant would plead guilty to both counts of the amended information.
On November 8, 1968, the defendant and Bates were again brought before the court. Following testimony of the examining psychiatrist, to the effect that defendant was capable of distinguishing between right and wrong, able to understand his peril and to assist in his defense, defendant's counsel requested that defendant be permitted to change his plea to the amended information. After careful and extensive questioning by the trial judge concerning the defendant's understanding of his rights and the voluntariness of his action, the defendant entered a plea of guilty to both counts of the amended information. Because of his prior record, defendant was thereupon sentenced to confinement in a state correctional facility for a maximum term of 15 years on the burglary charge and to the county jail for 1 year on the gross misdemeanor charge, both sentences to run concurrently. The felony charge against Bates was, upon motion of the prosecuting attorney, dismissed and sentence of 1 year in the county jail upon his plea of guilty to the gross misdemeanor charge was later suspended.
Shortly after his arrival at the state correctional facility, the defendant addressed a letter to the trial judge requesting permission to withdraw his pleas of guilty. He also prepared and filed a notice of appeal from his conviction. Present counsel was then appointed to represent the defendant and he, in turn, filed a formal motion to withdraw the pleas of guilty and vacate the judgment and sentence.
A hearing was held before the trial judge who had accepted defendant's pleas of guilty. The defendant was present and testified at the hearing. He stated that at the time of the alleged burglary he was under the influence of narcotics, was driving around with two companions, who at the time of the hearing were incarcerated with him in the correctional facility, and that two unknown men gave them the articles that were subsequently identified as the fruits of the burglary. Following this, the defendant said he joined Bates. He further testified that shortly after his arrest and incarceration in the county jail in early October, 1968, he acquired, from a source he refused to reveal, some LSD and remained under the influence thereof up to the time of his change of plea on November 8, 1968. As a result of this, he claimed he was unable to recall any events precipitating his pleas of guilty. He maintained, however, that his former attorney, Mr. Bovey, was unaware of his condition, represented him competently and that no fraud had been practiced against him to induce his pleas of guilty.
Mr. Bovey and the deputy prosecuting attorney testified concerning the conference in the prosecuting attorney's office leading up to the change of pleas on November 8, 1968. Both testified that at the time of the conference and on November 8th, the defendant, though somewhat disheveled, at the time of the conference, appeared rational and competent. The deputy prosecuting attorney then outlined the evidence the state would have presented to establish the charges had the defendant stood trial.
At the conclusion of the hearing, the trial court denied defendant's motion to withdraw his pleas of guilty and to vacate the judgment and sentence, and fixed appointed counsel's fee for his service up to that time at $150. Notice of appeal followed.
Two errors are assigned. The first assignment is directed to the denial of defendant's motion and the second to the failure of the trial court to award a more substantial attorney's fee.
We find no merit in defendant's first assignment of error.
A motion to withdraw a plea of guilty after judgment and sentence has been entered is addressed to the sound discretion of the court, and will be treated as an application to vacate the judgment pursuant to RCW 4.72.010. In addition to establishing one of the statutory grounds as a basis for vacating the judgment, it is necessary to show a prima...
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