Stiltner v. Rhay

• Decision Date: 28 June 1965
• Docket Number: No. 1934.,1934.
• Citation: 258 F. Supp. 487
• Court: U.S. District Court — District of Washington
• Parties: Douglas STILTNER, Petitioner, v. B. J. RHAY, Superintendent Washington State Penitentiary, Walla Walla, Washington, and the State of Washington et al., Respondents.

258 F. Supp. 487

Douglas STILTNER, Petitioner, v. B. J. RHAY, Superintendent Washington State Penitentiary, Walla Walla, Washington, and the State of Washington et al., Respondents.

No. 1934.

United States District Court E. D. Washington, S. D.

June 28, 1965.

COPYRIGHT MATERIAL OMITTED

Douglas Stiltner, pro se.

Stephen C. Way, Asst. Atty. Gen., of Washington, Olympia, Wash., for respondents.

ORDER and OPINION

POWELL, Chief Judge.

The petitioner is an inmate in the Washington State Penitentiary. He has been permitted to file a petition for writ of habeas corpus in forma pauperis. Two documents filed later have been consolidated with it. All three petitions have been heard and considered together and will be referred to in this opinion as if there were only one. The conviction from which this petitioner seeks his freedom is a sentence of not more than twenty years, under RCW 9.95.010, nor less than five years, under RCW 9.75.010, for the crime of robbery imposed by the Lewis County, Washington, Superior Court, on September 9, 1963.

This Court has jurisdiction under 28 U.S.C. § 2241. Petitioner's allegations are substantially as follows: Petitioner was arrested at Packwood, Washington, on May 27, 1963, and was taken to the Lewis County, Washington, jail. During his custody for the period through September 9, 1963, he was confined in one or more individual cell units which were extremely unsanitary and grimy and which lacked adequate facilities for drinking or washing.

The following papers were submitted to the Lewis County Superior Court and ignored by that court until the petitioner had entered a plea of guilty on September 3, 1963: (a) May 28, 1963, petition for writ of habeas corpus; (b) May 28, 1963, motion for an immediate arraignment; (c) May 29, 1963, motion for trial by jury within 60 days; and (d) May 30, 1963, petition for writ of habeas corpus.

On June 3, 1963, the jailers refused to allow the petitioner any further access to the courts by withdrawing his stationery and refusing to transmit his legal correspondence. In addition the petitioner was refused the right to have his attorney contacted and was refused the right to have visitors.

On June 3, 1963, petitioner was taken before the Lewis County Superior Court for arraignment but the arraignment was continued in order that an attorney could be appointed to represent the petitioner. On June 17, 1963, he was again brought before the Lewis County Superior Court, at which time he was accompanied by counsel and pleaded "not guilty." Petitioner changed his plea to "guilty" on September 3, 1963, and was sentenced on September 9. The Lewis County Superior Court denied petitioner's motion for a free transcript and his motion for leave to appeal in forma pauperis on December 4, 1963. That court ignored petitioner's motion for a rehearing on his motion for a free transcript and his motion for appointment of counsel to prosecute petitioner's appeal, both submitted on December 9, 1963.

Petitions for writs of habeas corpus were denied by the Washington Supreme Court on January 20, 1964, in cause number 37333, and on October 8, 1964, in cause number 37324. A petition for a writ of habeas corpus was denied by the Walla Walla County Superior Court on May 28, 1964.

Based upon the above allegations Mr. Stiltner asserts that he is entitled to a writ of habeas corpus from this Court and that he has exhausted his state court remedies.

This Court has considered the pleadings and briefs filed by the petitioner and respondent in this case and, further, this Court has reviewed the entire record from the proceedings had before the Washington Supreme Court, including the transcript of the hearing held on February 21, 1964, as a result of an Order of Reference issued by that court. On the basis of the entire record before it this Court finds that additional hearings are not necessary and that the petition for writ of habeas corpus must be denied.

The following issues raised by the petitioner have been considered by this Court, while all other issues have been considered but have been rejected as being without merit:

1. A sentence under RCW 9.75.010 to not less than five years imprisonment, and under RCW 9.95.010 to not more than twenty years, is unconstitutional as not within the power of the court, and such a sentence is based on unconstitutional statutes.

2. Petitioner's plea of guilty was involuntary.

3. Petitioner was refused the right to confer with his attorney, to have visitors, and to contact the courts prior to his trial.

4. Petitioner was denied the right to a speedy trial.

5. Petitioner's plea of guilty is insufficient to support a conviction without corroborating evidence.

6. Petitioner has a constitutional right to appeal from a conviction based on a plea of guilty.

7. Petitioner was denied the right to obtain a free trial transcript with which to determine if a basis exists for an appeal.

The above issues will be discussed in order.

The "Judgment, Sentence and Commitment to the Washington State Penitentiary" of the Lewis County Superior Court ordered that petitioner "be punished therefor by confinement in the State Penitentiary of the State of Washington for not more than twenty (20) years, but not less than five (5) years." Mr. Stiltner argues that the court was without power to impose a minimum sentence and therefore the entire sentence is void. He also argues that the statutes under which he was sentenced, RCW 9.75.010 and RCW 9.95.010, are unconstitutional. Considering the latter point first, it is unnecessary to cite authority for the proposition that the enactment of reasonable criminal statutes is within the police powers of a state. The statutes here do not conflict with any constitutional limitation nor with any subject delegated to the federal government. They are not unconstitutional.

Under the former point, RCW 9.75.010 requires that "every person who shall commit robbery shall be punished by imprisonment in the state penitentiary for not less than five years." Since 1935, the Washington courts are permitted to fix maximum sentences only for felony convictions as provided in RCW 9.95.010.¹ We accept the state court's decision that petitioner was properly sentenced to a maximum confinement of twenty years since the construction of the state statute is involved. See Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270 (1926); Reed v. Rhay, 323 F.2d 498, (9th Cir. 1963), cert. denied 377 U.S. 917, 84 S.Ct. 1184, 12 L.Ed.2d 187; Wright v. Rhay, 323 F.2d 653 (9th Cir. 1963), cert. denied 376 U.S. 958, 84 S.Ct. 976, 11 L. Ed.2d 974; Alderman v. Timpani, 56 Wash.2d 20, 351 P.2d 163 (1960); and Klapproth v. Squier, 50 Wash.2d 675, 314 P.2d 430 (1957).

That portion of the Lewis County Superior Court sentence ordering the petitioner to be confined for a minimum of five years is not a sentence prescribed by law and was erroneously imposed. As the Washington Supreme Court has said, "When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered. This does not, of course, affect the finality of a correct judgment and sentence that was valid at the time it was pronounced." In re McNutt v. Delmore, 47 Wash.2d 563, 565, 288 P.2d 848, 850 (1955), cert. denied 350 U.S. 1002, 76 S.Ct. 550, 100 L.Ed. 866. This view was concurred in by the Court of Appeals for the Ninth Circuit, McNutt v. Schneckloth, 241 F.2d 128, 129 (1957), which said, in addition, that correction of an erroneous sentence does not violate any constitutional rights of the petitioner. See also, State v. Williams, 51 Wash.2d 182, 185, 316 P.2d 913 (1957).

The fact that only a portion of the sentence of the trial court is erroneous does not permit this Court to ignore it and consider only the valid portion. An order directing a prisoner to be confined for not less than five years is not mere surplusage. This portion may be ignored by the Board of Prison Terms and Paroles in fixing the petitioner's duration of confinement under RCW 9.95.040, but that is an uncertainty. It is more probable that the board will give some weight to the direction of the sentencing court.

Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it is entitled to relief by habeas corpus. See Hans Nielsen, 131 U.S. 176, 182, 9 S.Ct. 672, 33 L.Ed. 118 (1889). The petitioner is not entitled to be released as he requests, however, if the sentence under which he is convicted can be corrected by the sentencing court. In Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 648, 91 L.Ed. 818 (1947), Mr. Justice Black stated:

"It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal. (Citations omitted.) But in those cases it was recognized that an excessive sentence should be corrected, even though the prisoner had already served part of his term, not by absolute discharge of the prisoner, but by an appropriate amendment of the invalid sentence by the court of original jurisdiction, at least during the term of court in which the invalid sentence was imposed.

* * * This Court has rejected the `doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.' (Citation omitted.) The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. * * *"

The trial court has the power to vacate a void judgment. See State v. Price, 59 Wash.2d 788, 370 P.2d 979 (1962). The petitioner must be returned to the Superior Court for Lewis County in order that the invalid portion of its judgment, sentence, and commitment ordering the...