52 Wn.2d 601, THE STATE OF WASHINGTON, Respondent, v. LAWRENCE J. CUMMINGS, Appellant

[No. 34343. Department One.      Supreme Court      July 17, 1958.]

THE STATE OF WASHINGTON, Respondent, v. LAWRENCE J.
                          CUMMINGS, Appellant.1

[1] CRIMINAL LAW - ARRAIGNMENT AND PLEA - REQUISITES AND SUFFICIENCY OF ARRAIGNMENT. When a defendant is represented by counsel at his arraignment, and the information is read to him in open court, there is no burden upon flee court of further enlightenment regarding the crime charged or the maximum or minimum sentence which could be imposed.

[2] JURY - RIGHT TO TRIAL BY JURY - WAIVER OF RIGHT. The right to trial by jury is waived by a plea of guilty.

[3] CRIMINAL LAW - ARRAIGNMENT AND PLEA - REPRESENTATION BY COUNSEL. A defendant who is represented by counsel will not be heard to say that he was misled regarding his possible sentence or his rights in the premises.

[4] SAME - ARRAIGNMENT AND PLEA - ISSUE OF REGULARITY OF PROCEEDINGS - EVIDENCE - ADMISSIBILITY. In a proceeding to vacate a judgment and to withdraw a plea of guilty to a crime of second degree assault, the trial court properly refused to admit evidence as to conversations the defendant had with a deputy prosecutor or the police in regard to bail and to his past reputation, since such evidence was not relevant to the issues before the court, which related to the regularity of the proceedings and to whether the plea of guilty was properly made.

[5] SAME - APPEAL AND ERROR - SCOPE AND EXTENT - MOTION TO VACATE JUDGMENT AND PLEA. In an appeal from an order denying a motion


1 Reported in -328 P. (2d) 160.

[2] See 34 A. L. R. (2d) 919; 31 Am. Jur. 51.

 602    STATE v. CUMMINGS. [52 Wn. (2d)

to vacate a judgment and plea of guilty in a prosecution for second degree assault, it was unnecessary to decide whether the defendant has shown a prima facie defense on the merits, where no irregularity in the arraignment or judgment was shown.

Appeal from an order of the superior court for Snohomish county, No. 1901, Denney, J., entered July 8, 1957, upon findings, denying a motion to vacate a judgment and for the withdrawal of a plea of guilty. Affirmed.

W. DeLmore McDowell and Lycette, Diamond & Sylvester, for appellant.

Arnold R. Zempel and Leo J. Gese, for respondent.

MALLERY, J. -

The defendant appeals from an order denying his motion to vacate the judgment and withdraw his plea of guilty to the crime of second degree assault.

The appellant was arrested in Montana and returned to Everett, Washington, March 13, 1957, at about 1:30 p. m. He signed a written statement regarding the facts of the case at the request of the prosecuting attorney. His parents hired an attorney for him, with whom they discussed the facts as they had been related to them by the appellant. The next day, March 14, 1957, his attorney discussed the case with him.

On Friday, March 15, 1957, the appellant, with his attorney, appeared in court for arraignment and pleaded guilty. The trial court thereupon announced judgment and sentence, which were formally entered on March 19, 1957. This procedure is in accord with RCW 10.40.010 and 10.40.060, which provide:

"When the indictment or information has been filed the defendant, if he has been arrested, or as soon thereafter as he may be, shall be arraigned thereon before the court." RCW 10.40.010.

"In answer to the arraignment, the defendant may move to set aside the indictment or information, or he may demur or plead to it, and is entitled to one day after arraignment in which to answer thereto if he demand it." RCW 10.40.060.

Appellant did not ask for additional time in which to plead. There was no error in the procedure followed herein.

 July 1958]              STATE v. CUMMINGS.           603

Appellant contends he has not had due process of law because his plea of guilty was not made voluntarily and understandingly. His argument is that he did not understand the crime with which he was charged, did not know the maximum sentence prior to the hearing, and was never told that the minimum term he could get under the law was five years.

Appellant had the services of his attorney the day before he was arraigned as well as at the arraignment. The information charging him with the crime was read to him in open court, and the court then questioned him as follows:

"THE COURT: Is Lawrence J. Cummings your true name?LAWRENCE J. CUMMINGS: Yes. THE COURT: Is Mr. Kafer here present your attorney? MR. CUMMINGS: Yes, sir. THE COURT: Are you ready at this time to enter a plea to this charge of assault in the second degree? MR. CUMMINGS: Yes. THE COURT: What is your plea, guilty or not guilty?MR. CUMMINGS: Guilty. THE COURT: Do you understand the nature of this charge? MR. CUMMINGS: Yes. THE COURT: You are charged with striking and beating one Grace McKinnon with a pistol? MR. CUMMINGS: Yes. THE COURT: A plea of guilty will enter."

[1] When a defendant is represented by counsel at his arraignment, and the information is read to him in open court, there is no burden of further enlightenment upon the court.

[2] Appellant contends his constitutional right to a trial by jury has been violated. By his plea of guilty, he has waived his right to a trial by jury. In re Brandon v. Webb. 23 Wn. (2d) 155, 160 P. (2d) 529.

[3] Appellant argues that he wrote out and signed the statement of the facts of the crime in reliance upon representations that he would probably get either a suspended sentence or three to six months in the county jail. He testified that what he wrote in the statement was true, that he was not forced to sign it, and that he was not promised anything for signing it. The appellant knew he would be sentenced by the judge before whom he appeared and not by the deputy prosecutor or the police. A defendant represented by counsel will not be heard to say that he was

 604    PALMER v. WATERMAN STEAMSHIP CORP. [52 Wn. (2d)

misled regarding his possible sentence or his rights in the premises.

[4] Appellant contends the trial court erred in the hearing on the motion to vacate by refusing to admit evidence as to conversations the appellant had in regard to bail and evidence as to his past reputation. The issues presented on this appeal relate to the regularity of the proceedings on arraignment and to whether the plea of guilty was properly made. The offered testim.ony was not relevant to these issues and was properly refused.

[5] Appellant has not shown any irregularity in the arraignment or judgment. It is, therefore, unnecessary to decide whether he has shown a prima facie defense on the merits. State v. Roff, 44 Wn. (2d) 309, 266 P. (2d) 1059.

The order denying the motion to vacate the judgrnent and to withdraw the plea of guilty is sustained.

HILL, C. J., FINLEY, OTT, and HUNTER, JJ., concur.