In RE KLAPPROTH v. Squier , 50 Wash. 2d 675 ( 1957 )

Mallery, J.

The petitioner pleaded guilty to a charge of intentionally taking a motor vehicle without the permission of the owner in violation of RCW 9.54.020, Rem. Rev. Stat., § 2601-1. He was sentenced to a maximum of not more than twenty years’ confinement in the reformatory of the state of Washington.

He now seeks to have his plea set aside upon the ground that he was not accorded due process of law. He was seventeen years of age at the time of his arraignment. His complaint is that “. . . the Superior Court of King County did not exert its influence to press counsel upon the juvenile child, . . . ” It is not contended that he was denied his constitutional right to be represented by counsel.

The following parts of the record show a competent and intelligent entry of his plea:

“The Court: You are charged with the crime of taking a motor vehicle without permission of owner. Have you an attorney? Mr. Klapproth: No. . . . [The information was read and a copy thereof served upon petitioner.] The Court: . . . Do you have an attorney? Mr. Klapproth: No, sir. The Court: How old are you? Mr. Klapproth: 17. . . . The Court: Do you have any funds with which to employ an attorney? The Witness: My mother is supposed to have an attorney now. The Court: She lives here? Mr. Klapproth: Yes. The Court: Do you think your mother is going to get an attorney? Mr. Klapproth: Yes. The Court: When did she tell you? Mr. Klapproth: Friday.”

On October 18, 1955, the cause came on again for hearing and the following ensued:

“Mr. Callow: May the record show this is the matter of State vs. John W. Klapproth on a charge of taking a motor vehicle without permission, No. 29541. The defendant is here in court and is not represented by counsel. The Defendant: I have talked to my folks, and I have decided not to have counsel. Mr. Callow: You do not wish the appointment of counsel by the court? The Defendant: Yes, sir. Mr. Callow: That is correct? The Defendant: Yes, sir. Mr. Callow: And are you prepared to enter a plea to that charge at this time? The Defendant: Yes, sir. The Court: On October 11, Mr. Klapproth, you advised the court that you were procuring your own attorney. The Defendant: Yes, sir. The Court: You have decided against that? The Defendant: Yes, sir. The Court: And you do not wish the court to appoint an attorney to represent you? The Defendant: No, sir. The Court: Beg pardon? The Defendant: No, sir. I’d rather not have one. The Court: You have given this matter full consideration, have you? The Defendant: Yes, sir.”

The court thus particularly asked if he desired the aid of counsel and if he was able to employ counsel. It did not appear that he was unable to employ counsel by reason of poverty. Petitioner specifically waived his right to legal counsel, which even a minor can do. State v. Baforo, 146 Wash. 312, 262 Pac. 964.

RCW 10.40.030 [cf. Rem. Rev. Stat., § 2095] reads:

“If the defendant appear without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and he shall be asked if he desire the aid of counsel, and if it appear that he is unable to employ counsel by reason of poverty, counsel shall be assigned to him by the court.”

The fair intendment of the court’s language was to repeatedly offer the appointment of counsel for petitioner until he specifically refused it. The continuance of petitioner’s arraignment on four occasions negatives any risk that his waiver of counsel was due to haste or pressure.

In re Wilken v. Squier, ante p. 58, 309 P. (2d) 746, is not in point. That case was decided upon the basis that the defendant was “under the mistaken impression that, since he cannot afford to pay a lawyer, he cannot have legal representation.” In the instant case, the appointment of counsel was declined.

The statute imposes no duty upon the court “to press counsel” upon a minor defendant. It does not prescribe the use of a particular form of words, and petitioner does not contend that he did not know he had a right to counsel.

Petitioner waived his right to counsel by refusing the appointment of counsel, and his plea of guilty, after adequate deliberation, was competently and intelligently entered. He has had due process of law. His plea will not be set aside.

Petitioner was given a maximum sentence of not more than twenty years’ imprisonment in compliance with RCW 9.95.010 [cf. Rem. Supp. 1947, § 10249-2 part], which we held in In re Macduff v. Cranor, 42 Wn. (2d) 488, 256 P. (2d) 293, was applicable to the offense here in question.

• We now overrule In re Macduff, supra, and hold that RCW 9.95.010 is not applicable.

The applicable statute under which petitioner must be sentenced is RCW 9.92.010, Rem. Rev. Stat., § 2265, which reads:

“Every person convicted of a felony for which no punishment is specially prescribed by any statutory provision in force at the time of conviction and sentence, shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both.” (Italics ours.)

This statute is applicable because no specific penalty is provided for the offense in question in the statute defining the crime. It is to be noted that this statute fixes a maximum penalty.

The source of the error in In re Macduff, supra, which we now correct, was that it assumed that RCW 9.92.010 was repealed by implication for the reason that RCW 9.95.010 was a part of the act relating to prison terms and paroles which revamped the over-all system of prison sentences.

RCW 9.95.010 [cf. Rem. Supp. 1947, § 10249-2 part] provides, inter alia:

“When a person is convicted of any felony, . . . the court shall sentence such person to the penitentiary, . . . and shall fix the maximum term of such person’s sentence only.

“The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term. If the law does not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years.” (Italics ours.)

The assumption that this section superseded RCW 9.92-.010 was not warranted, since the statutes in question are not repugnant and can be construed together simply by making the twenty-year maximum fixed by the court under RCW 9.95.010 inapplicable where the maximum penalty fixed by law in RCW 9.92.010 is applicable.

The twenty-year maximum term to be fixed by the court under RCW 9.95.010 therefore does not apply in the instant case. The ten-year maximum sentence prescribed by RCW 9.92.010 is the correct penalty to be applied herein.

This holding makes it necessary to correct the sentence pronounced upon the petitioner by the trial court, and, accordingly, the respondent is directed to produce the petitioner in the court where his plea was entered. That court is directed to impose a corrected sentence in accord with this opinion.

Hill, C. J., Schwellenbach, Donworth, Ott, and Foster, JJ., concur.