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*169 Hunter, J.The petitioner, Robert Wakefield, hereinafter called the defendant, was charged with the crime of grand larceny by embezzlement, and upon a plea of guilty, judgment was entered. He was sentenced to the state reformatory at Monroe and later transferred to the state penitentiary at Walla Walla. This matter comes before us on 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 defendant was properly advised of his right to counsel and whether he competently and intelligently waived such right.
At the defendant’s arraignment, on May 26, 1947, in the Superior Court for Yakima County, the following occurred:
“By the Court: Q. Is your true name Robert Wakefield? A. Yes, your honor. Q. How old are you? A. Thirty. Q. Do you understand the nature of the charge? A. I do now. Q. You say you do? A. Yes, sir. Q. Have you talked to an attorney? A. No, sir. Q. It is your privilege before entering a plea to have an attorney. A. I don’t think so. Q. You don’t want an attorney? A. No, sir. Q. Are you ready now to enter your plea? A. Yes, sir. Q. What is your plea; guilty or not guilty? A. Guilty.
“The Court: A plea of guilty will be received. ...”
In In re Wilken v. Squier, 50 Wn. (2d) 58, 309 P. (2d) 746 (1957), this court said:
“The right of an accused to appear and defend by counsel is expressly guaranteed by Art. I, § 22 (amendment 10) of the state constitution. In furtherance of this constitutional guarantee, RCW 10.01.110 and 10.40.030 imposes upon the court three duties; (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 the defendant that the court shall appoint counsel for the defendant at public expense if he so desires; (3) to ask whether the defendant desires the aid of counsel.
“The plain mandate of our statute imposes a duty on the court to inform a defendant of his constitutional right to have the aid of counsel. Without this information or prior knowledge of his right, a defendant cannot waive his right ‘intelligently and competently.’ Merely asking the defendant
*170 whether he wants a lawyer does not convey the information that he is entitled to a lawyer at public expense if he is an indigent person, nor does it impress upon him the importance 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 that, since he cannot afford to pay a lawyer, he cannot have legal representation.”In the instant case there is no showing that the defendant had any prior knowledge of his rights. The record discloses that the court did not ascertain whether, because of defendant’s poverty, he was unable to employ counsel, and that he was not informed of his right to counsel at public expense. Thus, it is manifest 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 result, the defendant was deprived of a right guaranteed to him by Art. I, § 22 (amendment 10) of the state constitution. See State v. Dechmann, 51 Wn. (2d) 256, 317 P. (2d) 527 (1957); In re Friedbauer v. State, 51 Wn. (2d) 92, 316 P. (2d) 117 (1957).
The respondent argues that In re Wilken v. Squier should not be applied to the instant case because this constitutes a retroactive application of a judicial decision. We find no merit to such a contention. The defendant acquired no rights, by virtue of In re Wilken v. Squier, which he did not already have.
As an alternate basis for issuance of the writ, the defendant asserted that the information failed to state facts sufficient to charge the commission of a crime. This allegation will not be considered, because the sufficiency of the information may not be challenged by habeas corpus. In re Palmer v. Cranor, 45 Wn. (2d) 278, 273 P. (2d) 985 (1954); In re Moon v. Cranor, 35 Wn. (2d) 230, 212 P. (2d) 775 (1949).
The judgment and sentence of the Superior Court for Yakima County is hereby vacated with the direction that the defendant, Robert Wakefield, be remanded to the custody of the sheriff of Yakima county to answer the charge of the information, and to be dealt with by the superior court for
*171 that county according to law and in a manner consistent with the views expressed herein.Donworth, Finley, Rosellini, and Foster, JJ., concur.
Document Info
Docket Number: 35081
Citation Numbers: 356 P.2d 596, 57 Wash. 2d 168, 1960 Wash. LEXIS 458
Judges: Rosellini, Mallery
Filed Date: 10/20/1960
Precedential Status: Precedential
Modified Date: 11/16/2024