A defendant has the right to have a lawyer present prior to sentencing.
The petitioner Jerry Mempa was convicted for joyriding, which was based on his plea of guilty entered with the advice of court-appointed counsel. He was then placed on probation for two years and four months later, the Spokane County prosecuting attorney moved to have petitioner’s probation revoked on the grounds that he had been involved in a burglary. St the hearing, when asked if he participated in the burglary, he answered yes without the presence of an attorney. The court then immediately entered an order revoking petitioner’s probation and then sentenced him to 10 years in prison without asking for any evidence to support the claim. Mempa filed a writ of habeas corpus claiming that he had been deprived of his right to counsel at the proceeding.
Does a defendant have the right to have a lawyer present before sentencing at a probation revocation hearing?
The court affirmed. In Gideon v. Wainwright, the Court held that the right to appointment of counsel was absolute in felony cases, even for an indigent. This is because some legal rights may be lost if they are not exercised at this stage. For example, in Washington an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation. It decided here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing. We assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.