State v. Shannon

• Citation: 60 Wn.2d 883,376 P.2d 646
• Decision Date: 06 December 1962
• Docket Number: No. 36235,36235
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Respondent, v. Omar Ernest SHANNON, Defendant, Lawrence Edward ATTEBERY, Appellant.

Page 883

60 Wn.2d 883

376 P.2d 646

The STATE of Washington, Respondent, v. Omar Ernest SHANNON, Defendant, Lawrence Edward ATTEBERY, Appellant.

No. 36235.

Supreme Court of Washington, Department Two.

Dec. 6, 1962.

Foster & Foster, Donald J. Horowitz, Olympia, for appellant.

Hewitt Henry, Harold R. Koch, Deputy Pros. Atty., Olympia, for respondent.

HAMILTON, Judge.

This is an appeal by defendant Attebery from a judgment and sentence, following revocation of probation under a deferred sentence imposed pursuant to RCW 9.95.200, 9.95.210, 9.95.220, 9.95.230. ¹ The events pertinent to a consideration of defendant's assignments of error, in chronological order, are:

October 3, 1955, the defendant, represented by court-appointed counsel, upon entry of a guilty plea to the crime of grand larceny, was granted a deferral of sentence and placed upon probation by the Superior Court of Thurston County.

October 29, 1955, the defendant was arrested on a technical charge in Bellingham, Washington, and held on suspicion of grand larceny.

November 14, 1955, the Prosecuting Attorney of Thurston County filed a petition to revoke defendant's probation and to impose sentence, alleging, inter alia, an admission by defendant to commission of the crime of grand larceny, and, further, that, unknown to the Thurston County authorities, at the time of granting probation, defendant was free on bail from a robbery charge in Oregon.

November 23, 1955, the defendant appeared before the Thurston County Superior Court, without counsel, at which time, following a hearing, during which defendant offered no evidence, probation was revoked and sentence to a penal institution imposed.

February 6, 1961, the defendant filed a petition for writ of habeas corpus in the Superior Court of Walla Walla County, seeking vacation of the order of revocation and sentence, upon the premise that he was not represented by counsel at the time of revocation and sentencing.

June 26, 1961, the Superior Court of Walla Walla County granted defendant's petition, vacated the November, 1955, order and sentence of the Thurston County Superior Court, and remanded defendant to Thurston County for further proceedings.

July 11, 1961, counsel was appointed by the Thurston County Superior Court to represent the defendant.

August 21, 1961, upon petition for revocation, containing, in substance, the original allegations of misconduct, a hearing was held. Following testimony by the defendant's former probation officer and the defendant, the court, by oral decision, determined the defendant had violated the terms of his probation in 1955 and revoked his probation and order of deferred sentence.

August 28, 1961, the court imposed and signed sentence upon the original charge.

Commencing with the hearing of August 21, 1961, defendant, through his counsel, interposed and preserved objections to the proceedings. Such objections constitute defendant's present assignments of error, and are:

(1) The revocation proceedings of August, 1961, violated defendant's constitutional right, guaranteed by Const. Art. 1, §§ 3 ² and 22 (amendment 10) ³, and U. S. Const. Fourteenth Amendment ⁴, because the lapse of time precluded obtaining witnesses and impeded the effectiveness of counsel;

(2) The technical charge upon which the defendant was arrested in Bellingham, in 1955, was predicated upon an unconstitutional ordinance; and

(3) The sentence imposed by the court on August 21, 1961, failed to accord defendant credit for time previously served.

As a prelude to a consideration of defendant's first assignment of error, it should be borne in mind that, under our statutes and applicable decisional law:

(a) The granting of a deferred sentence and probation, following a plea or verdict of guilty, is a rehabilitative measure, and as such is not a 'matter of right but is a matter of grace, privilege, or clemency granted to the deserving, and withheld from the undeserving,' within the sound discretion of the trial judge. State v. Farmer, 39 Wash.2d 675, 237 P.2d 734; State ex rel. Schock v. Barnett, 42 Wash.2d 929, 259 P.2d 404; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266.

(b) The order deferring sentence and granting probation, under our procedures, is not a final judgment from which an appeal lies. State v. Farmer, supra; State ex rel. Schock v. Barnett, supra.

(c) A revocation or modification proceeding under our statutes is not a criminal prosecution within the contemplation of Const. Art. 1, § 22 (amendment 10) entitling a defendant, as a matter of right, to the privileges therein accorded. In re Jaime v. Rhay, 159 Wash. Dec. 62, 365 P.2d 772.

(d) Fair play, due process, and the intent of our statute, in requiring that a defendant be 'brought before the court wherein the probation was granted' (RCW 9.95.220), entitle such defendant to be reasonably informed of the allegations of probation violation, and an opportunity to be heard thereupon. State v. O'Neal, 147 Wash. 169, 265 P. 175; Escoe v. Zerbst, supra.

(e) Absent statutory procedural criteria compelling formal trial in revocation or modification proceedings, the judicial function requires that the nature and extent of judicial inquiry therein, and determination thereof, be grounded upon the exercise of sound judicial discretion, fair treatment, and conscientious judgment, consistent with the ends of justice and the interests of both society and the defendant. Burns v. United States, supra; Escoe v. Zerbst, supra; State v. O'Neal, supra. The court need not be furnished with evidence establishing beyond a reasonable doubt guilty by the probationer of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the court that the probationer is 'violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life.' RCW 9.95.220; State v. Elder, 77 S.D. 540, 95 N.W.2d 592.

(f) Imposition of sentence, following revocation of probation, particularly in felony cases, is part of the criminal prosecution within the contemplation of Const. Art. 1, § 22 (amendment 10), at which time a defendant is entitled to be represented by counsel. In re McClintock v. Rhay, 52 Wash.2d 615, 328 P.2d 369; In re Lvei, 39 Cal.2d 41, 244 P.2d 403.

With the foregoing principles before us, we turn to defendant's first assignment of error.

Examination of the transcript and the statement of facts reveals that defendant was (1) required by the terms of his probation to 'maintain general good behavior'; (2) accorded counsel prior to and at the hearing of August 21, 1961; (3) seasonably aware of the allegations of probation violation; (4) confronted with the testimony of the probation officer concerning his probationary conduct and accorded the right of cross-examination; and (5) allowed to testify at length upon his own behalf, during the course of which he disputed the testimony of the probation officer and testified relative to the existence of certain witnesses, the tenor of their purported testimony, and his inability to locate them. He did not request a continuance or seek to enlist the processes of the court to obtain such witnesses.

At the conclusion of the hearing, the court considered the evidence presented, determined that the purported testimony of the witnesses, about which defendant spoke, would be, if admissible, cumulative, concluded that defendant had violated the terms, conditions, and intent of his probation, and, in the exercise of its discretion, ordered revocation of the privilege of probation and the order deferring sentence. Thereafter, on August 28, 1961, with the defendant and his counsel present, the court imposed sentence upon the original charge.

We are satisfied, upon the basis of the record before us, that the court, in revoking defendant's probation and order of deferred sentence, and in imposing sentence, did not abuse its discretion or abridge any of defendant's statutory or constitutional rights.

The defendant, by his second assignment of error, asserts:

'* * * the court erred in considering the charge that Appellant [defendant] violated the ordinance of the City of Bellingham which makes it a misdemeanor for an ex-convict to fail to register as such, in that said ordinance violates the due process clause of the Fourteenth Amendment of the United States Constitution.'

This assignment is without merit. The record does not support defendant's contention that the court premised its revocation of probation upon an alleged violation of the ordinance in question. The record indicates larcenous acts of the defendant as the basis of the court's action.

Defendant's third assignment of error asserts the sentencing court erred in refusing to grant credit, upon the sentence imposed August 28, 1961, for the time defendant had served under the vacated sentence imposed on November 23,...