63 Wn.2d 508, In the Matter of the Application for a Writ of Habeas Corpus of EUGENE RITCHIE, Appellant, v. B. J. RHAY, as Superintendent of the State Penitentiary, Respondent
[No. 36903. Department Two.      Supreme Court      December 26, 1963.]
In the Matter of the Application for a Writ of Habeas Corpus
          of EUGENE RITCHIE, Appellant, v. B. J. RHAY, as
           Superintendent of the State Penitentiary,
                          Respondent.

There are no "magic words" which fit all situations as to what the trial court must say in advising an accused person of his constitutional rights. In In re Wilken v. Squier, 50 Wn. (2d) 58, 61, 309 P. (2d) 746 (1957), we said:

". . . 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 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

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importance of having legal representation if his rights are to be fully protected. . . ."

In in re Klapproth v. Squier, 50 Wn. (2d) 675, 314 P. (2d) 430 (1957), in considering whether a 17-year-old defendant waived his right to counsel, we said, at page 677:

"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." In that case, the trial court only asked the defendant if he wished the court to appoint a counsel, and did not specifically advise the petitioner that the county would provide a counsel if he were without funds. This case was decided after Wilken, and did not discuss the test outlined.

[1] It is now well established that a waiver of the right to counsel must be found on the facts of each case. The often cited case on waiver is Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1937), where the United States Supreme Court said, at page 464:

". . . A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (Italics ours.)

The rule of the Johnson case was adopted by this court in In re Gensburg v. Smith, 35 Wn. (2d) 849, 215 P. (2d) 880 (1950), where we said, at page 856:

"An accused person may waive his constitutional right to counsel, but this power of waiver, to be effective, must be exercised `competently and intelligently.' Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357; Voigt v. Webb, 47 F. Supp. 743. In the Johnson case it was further held that one who asserts that the right

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to counsel was not competently and intelligently waived, has the burden of proof to establish that claim."

Appellants cite several cases in support of their contention that they had not been adequately advised of their constitutional right to counsel, and, therefore, there could be no waiver.

State v. Dechmann, 51 Wn. (2d) 256, 317 P. (2d) 527 (1957), cited by appellants, is clearly distinguishable from the present case. There, the defendant was asked by the trial court only whether he wanted an attorney. He was not advised that he had such right. The case cites Wilken, supra, for the proposition that the mere fact a defendant is asked if he desired counsel does not convey the information that he is entitled to an attorney at public expense if he is without funds. In the present case, the petitioners were advised of their right to employ counsel and also of their right to have counsel appointed by the court and paid from public funds, if they were without funds.

The case of In re Wakefield v. Rhay, 57 Wn. (2d) 168, 356 P. (2d) 596 (1960), does not apply to the present case. There, the petitioner was told only that he had a privilege to have an attorney and was asked if he desired an attorney. The petitioner was not given sufficient information from which he could competently and intelligently waive his right to counsel.

In re Aichele v. Rhay, 57 Wn. (2d) 178, 356 P. (2d) 326 (1960) (not cited by petitioners), is similar to Wakefield, in that the trial court did not inform the defendant of his constitutional rights, but only advised him that he had a right to see an attorney and inquired if defendant desired aid of counsel. This was not sufficient to inform defendant of his right to an attorney at state expense.

This court has, since the present case was argued, decided the case of State v. Angevine, 62 Wn. (2d) 980, 385 P.(2d) 329 (1963), which has a direct bearing on the question now before us. In that case, a 17-year-old boy was charged in 1949 with having, in 1947, and again in 1948, taken motor vehicles without the permission of the owners

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thereof. In 1962, he petitioned the superior court for a writ of error coram nobis seeking to vacate a sentence of 10 years in the reformatory, entered upon his plea of guilty on the two counts. After holding that the evidence did not preponderate against the trial court's findings that the court, at the time of his arraignment, had advised the youth of his legal rights as a person charged with crime, and that he had knowingly and intelligently waived his right to counsel, this court said, at page 966:

"Petitioner contends, however, that because of his youth at the time of his arraignment he could not, and should not, as a matter of law, be deemed competent to waive counsel, when charged with a felony in superior court.

"There is among the authorities differences of opinion and approach to the question of the competency of a youthful offender to waive counsel. 71 A.L.R. (2d) 1162. Most, if not all, jurisdictions, in felony cases, treat the question presented as one of fact, depending upon the individual offender's education, experience, and intelligence."

Appellants also rely on the fourteenth amendment to the United States Constitution which the United States Supreme Court has recently held makes the provision in the Sixth Amendment relating to an accused person's right to counsel in felony cases applicable to the states. See Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. (2d) 799, 83 S. C. 792 (1963).

Even before the decision in the case last cited, the Supreme Court had held that the due process clause of the Fourteenth Amendment prevented a state from denying counsel to an accused person when the record shows the fundamental unfairness of trying him without the assistance of counsel. See Carnley v. Cochran, 369 U. S. 506, 8 L. Ed. (2d) 70, 82 S. Ct. 884 (1962), and cases cited.

Appellants, in invoking the protection of the Fourteenth Amendment, rely on Rice v. Olson, 324 U. S. 786, 89 L. Ed. 1367, 65 S. Ct. 989 (1945), where an Indian, without the benefit of counsel, pleaded guilty in a state court to a charge of burglary. The holding in this case is described by the Supreme Court in the Carnley case as follows, at p. 515:

Dec. 1963] IN RE RITCHIE v. RHAY 517

"We have held the principles declared in Johnson v. Zerbst equally applicable to asserted waivers of the right to counsel in state criminal proceedings. In Rice v. Olson, supra, the petitioner had pleaded guilty to a burglary charge. He did not claim that he had requested counsel, but alleged that he had not been advised of his right to the assistance of counsel and that he had not waived that right. In affirming the denial of relief, the State Supreme Court wrote that ' "It is not necessary that there be a formal waiver; and a waiver will ordinarily be implied where accused appears without counsel and fails to request that counsel be assigned to him, particularly where accused voluntarily pleads guilty." ' We held that even when there had been a guilty plea such an implication, treated as a conclusive presumption, was `inconsistent with our interpretation of the scope of the Fourteenth Amendment,' and that `A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.' 324 U. S., at 788. However, we recognized in Rice v. Olson that, although the Fourteenth Amendment would not countenance any presumption of waiver from the appearance of the accused without counsel and the silence of the record as to a request, the entry of the guilty plea might have raised a fact issue as to whether the accused did not intelligently and understandingly waive his constitutional right. We held that a hearing was required since the facts were in dispute. In the present case, however, there was no guilty plea, and the return to the writ does not allege an affirmative waiver. Therefore, there is no disputed fact question requiring a hearing. Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."

The Rice case differs from the present case for two reasons: first, appellants here, in view of their background and previous experience, were adequately advised of their right to counsel, and, second, they do not claim that they did not understand their rights (appellant in Rice alleged he was ignorant of the law).

[2] In the case before us (as shown by the above-quoted portions of the record made in the Grant County Superior Court), both appellants, prior to pleading to the information, were offered counsel, but intelligently and

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understandingly rejected the offer. Hence, the requirements of the sixth and fourteenth amendments to the United States Constitution are satisfied in this case.

In the present case, the trial court followed the format outlined in Wilken, supra. Appellants were advised that they had a constitutional right to have counsel. The court also informed them of their right to have court-appointed counsel at the expense of the county if they wished an attorney and were financially unable to employ counsel. The information given them by the trial judge was sufficient to inform them of their constitutional rights when considered in the light of their individual intelligence and experience.

After considering the record in the Grant County arraignment proceedings (quoted above), we have no doubt that appellants knew and appreciated the nature of the proceedings in which they were involved and that they did have a right to counsel. Each of them had had personal experience with criminal procedure. Ritchie also had had a court-appointed counsel to represent him when he was charged with a felony in Spokane in 1959. Appellants make no claim that they did not know or appreciate the nature of the proceedings or that they could intelligently waive their right to counsel. The only claim raised is that the trial court did not specifically ask them questions and elicit answers according to the test in the Wilken case.

We feel that the trial court adequately advised these two petitioners of their right to be represented by counsel of their own choice or, if indigent, by court-appointed counsel without expense to them, and they were aware of their rights when they chose to enter a plea. They had sufficient information and experience to "competently and intelligently" waive their right to counsel, and they did precisely that. No particular form of words was necessary to convey that information to them.

The trial court's denial of appellants' respective petitions for writs of habeas corpus is affirmed.

OTT, C. J., FINLEY, WEAVER, and HAMILTON, JJ., concur.