In RE AICHELE v. Rhay
356 P.2d 326
Wash.
1960
Check Treatment

In the Matter of the Application for a Writ of Habeas Corpus of LEWIS DALE AICHELE, Petitioner, v. B. J. RHAY, as Superintendent of the State Penitentiary, Respondent.

No. 35321

En Banc.

October 20, 1960

Petition for rehearing denied December 12, 1960.

356 P. (2d) 326

HUNTER, J.

Smithmoore P. Myers, for petitioner.

The Attorney General, Lawrence Ross and Stephen C. Way, Assistants, for respondent.

HUNTER, J.—The petitioner, Lewis Dale Aichele, hereinafter called the defendant, was charged with the crime of second-degreе burglary, in the Superior Court for Yakima County. Upon the defendant‘s pleа of guilty, ‍​​​​​‌‌​‌‌‌​​​‌‌​‌‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌​‌‍the court entered an order deferring sentence. The order was subsequently revoked and the defendant was sentenced to the stаte penitentiary at Walla Walla. This matter comes before us оn a petition for a writ of habeas corpus, as an original petition filed in this court.

The question raised by the petition is whether the de-fendant was properly advised of his right to сounsel and whether he competently and intelligently waived such right.

At the defendant‘s arraignment on February 18, 1948, the following occurred:

“THE COURT: Is your true name Lewis Aichele? MR. AICHELE: Yes, sir. . . . THE COURT: How old are you? MR. AICHELE: Eighteen, sir. THE COURT: Do you understand this charge? MR. AICHELE: Yes, sir. THE COURT: Have you talked to an attorney? MR. AICHELE: What? THE COURT: Have you talked to аn attorney about this ‍​​​​​‌‌​‌‌‌​​​‌‌​‌‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌​‌‍case? MR. AICHELE: No, sir. THE COURT: You would have the right to see an аttorney before pleading, if you would like to have one. MR. AICHELE: No, sir. THE COURT: Are you ready at this time to enter your plea? MR. AICHELE: Yes, sir. THE COURT: What is your plea, guilty or nоt guilty? MR. AICHELE: Guilty.”

This court said in :

“The right of an accused to appear and defend by counsеl is expressly guaranteed by Art. I, § 22 (amendment 10) of the state constitution. In furtherance оf this constitutional guarantee, RCW 10.01.110 and 10.40.030 imposes upon the court three dutiеs; (1) to inform the defendant that it is his right to have counsel before being arraigned; (2) to ascertain whether because of the defendant‘s poverty he is unable to employ counsel, ‍​​​​​‌‌​‌‌‌​​​‌‌​‌‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌​‌‍in which event, the court must inform thе defendant that the court shall appoint counsel for the defendant at public expense if he so desires; (3) to ask whether the defеndant desires the aid of counsel.

“The plain mandate of our statute imposes a duty on the court to inform a defendant of his constitutionаl right to have the aid of counsel. Without this information or prior knowledgе of his right, a defendant cannot waive his right ‘intelligently and competently.’ Merely asking the defendant whether he wants a lawyer does not convеy the information that he is entitled to a lawyer at public expensе if he is an indigent person, nor does it impress upon him the importancе of having legal representation if his rights are to be fully protected. Thus, an indigent defendant‘s waiver may be made under the mistaken impression thаt, since he cannot afford to pay a lawyer, he cannot hаve legal representation.”

We applied the doctrine of the Wilken case in the recent case of , where as in the instant case, the record showed (1) that the court did not ascertain whether, becausе of the defendant‘s poverty, he was unable to employ counsеl, and (2) that he was not informed of his right to counsel at public expensе. In the Wakefield case, we concluded:

“. . . that the defendant was not in possession of such knowledge as would permit him ‘intelligently and competently’ ‍​​​​​‌‌​‌‌‌​​​‌‌​‌‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌​‌‍to waive his right to counsel. As a rеsult, the defendant was deprived of a right guaranteed to him by Art. I, § 22 (amendment 10) of the state constitution.”

The same сonclusion must be drawn from the record in the instant case.

The judgment and sentence of the Superior Court for Yakima County is hereby vacated with the direction that the defendant, Lewis Aichele, be remanded to thе custody of the sheriff of Yakima county to answer the charge of the information, and to be dealt with by the superior court for that county аccording to law and in a manner consistent with the views expressed herein.

DONWORTH, FINLEY, ROSELLINI, and FOSTER, JJ., concur.

ROSELLINI, J. (concurring) — I concur for the ‍​​​​​‌‌​‌‌‌​​​‌‌​‌‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌​‌‍reasons stated in my concurring opinion in .

MALLERY, J. (dissenting)—I dissent for the reasons stated in my dissent in .

WEAVER, C. J., HILL, and OTT, JJ., concur with MALLERY, J.

Notes

1
Reported in .