Haislip v. MorrisHaislip v. Morris
- Reporters:
- , ,
- Before:
- Finley
— Petitioner Haislip filed a writ of habeas corpus in this court, which after hearing was referred to the Whatcom County Superior Court for an evidentiary hearing; The findings of that hearing are now before this court to aid in evaluation of petitioner’s writ of habeas corpus.
Petitioner Haislip was charged and convicted of two counts of forgery in 1968. Each count consisted of the passing of a forged check in the amount of $20. The prosecution charged that Haislip was an habitual criminal under
Haislip alleges in his petition that sentencing under the recidivist statute was improper as: (1) the Virginia and North Carolina convictions were constitutionally invalid as he was not represented by counsel at either proceeding, and (2) the Arizona bogus check conviction did not constitute a felony under Washington law. Thus, petitioner asserts that he had only one valid prior conviction, in California, and therefore he could not be sentenced as an habitual criminal. The Superior Court for Whatcom County has conducted an evidentiary hearing upon the nature and circumstances surrounding petitioner’s four prior convictions.
The findings of the Superior Court conclusively determined that, indeed, petitioner was not represented by nor validly waived counsel with regard to his 1940 Virginia or his 1941 North Carolina convictions. It is now a well settled principle of constitutional law that a conviction invalid under
Gideon v. Wainwright,
372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963), may not be used under a recidivist statute to enhance the sentence for a later conviction,
Burgett v. Texas,
389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), or considered in the sentencing process,
United States v. Tucker,
404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). Thus, neither petitioner’s Virginia nor North Carolina convictions may be considered as convictions under Washington’s recidivist statute,
The Superior Court determined that at the 1957 California conviction the petitioner was accorded counsel at all critical stages and that the California ofíense constituted a
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felony under Washington law. Accordingly, the California conviction may be considered under
Finally, petitioner contends that his 1960 Arizona felony conviction for passing a bogus check does not constitute a felony under Washington law. We agree with the finding of the Whatcom Superior Court that the Arizona conviction is properly deemed a gross misdemeanor under Washington law.
See
Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, . . . shall be punished by imprisonment in the state penitentiary for life.
(Italics ours). As the Arizona conviction did not constitute a felony under the laws of this state, it may not be used to enhance petitioner’s sentence.
We must conclude, therefore, that for purposes of
Hale, C.J., and Rosellini, Hunter, Hamilton, Stafford, Wright, Utter, and Brachtenbach, JJ., concur.