Addington v. State, 44278
| Decision Date | 04 March 1967 |
| Docket Number | No. 44278,44278 |
| Citation | 198 Kan. 228,424 P.2d 871 |
| Parties | Edwin ADDINGTON, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An accused has no constitutional right to the appointment of counsel at the preliminary examination and failure to provide him with counsel at such time does not constitute error in the absence of prejudice to his substantial rights.
2. The decisions of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are applicable only to those cases in which the trial began after each decision was announced, and this court declines to apply those decisions retroactively to a criminal case tried before they were decided.
3. In this jurisdiction, it is the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are likewise under his supervision and control, including the exercise of discretion to invoke the Habitual Criminal Act in a proper case, upon reasonable notice of the state's intention to do so.
4. The good faith of the county attorney is a material issue bearing upon his motives when invoking the Habitual Criminal Act, since the exercise of discretion in the performance of his duties implies conscientious judgment rather than arbitrary action, and takes account of the law and particular circumstances of each case. Such discretion must be exercised fairly, wisely, and in accordance with the established principles of law; and includes the right to select a course of action, not willfully or in bad faith, but only with respect to what is right under the circumstances.
5. In a proceeding to vacate and set aside a criminal sentence pursuant to K.S.A. 60-1507, the petitioner has the burden of establishing by a preponderance of the evidence his claim that the county attorney acted willfully, deliberately and in bad faith when invoking the Habitual Criminal Act in such a sentence.
6. Mere trial errors or irregularities of procedure not going to the district court's jurisdiction are not reviewable in a proceeding commenced pursuant to K.S.A. 60-1507. (Rule No. 121(c)(4), 194 Kan. XXVII.)
7. The record in an appeal from an order denying a motion to vacate the judgment and sentence imposed against the appellant (K.S.A. 60-1507), is examined, and for reasons stated in the opinion, it is held: The district court did not err in denying the motion without granting a plenary hearing, or in not appointing counsel to represent him.
Jack N. Stewart, Salina, argued the cause and was on the briefs, for appellant.
Bill Crews, County Atty., Salina, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, was with him on the briefs, for appellee.
The appellant, Edwin Addington, has appealed from the district court's judgment overruling his motion (K.S.A. 60-1507) to vacate and set aside the sentence of the district court imposed upon him on May 9, 1963, for a term of not less than fifteen years confinement in the Kansas State Penitentiary pursuant to the Kansas Habitual Criminal Act. (K.S.A. 21-107a.)
The appellant is hereafter referred to as the defendant.
Pertinent dates and proceedings leading up to the defendant's trial and conviction by a jury in the district court follow: On November 9, 1962, the defendant was arrested upon a warrant issued out of the City Court of Salina, charging him with the larceny of a Buick automobile. On December 28, 1962, at the request of the defendant, a preliminary examination was held before the judge of the City Court of Salina and the defendant was bound over for trial in the district court. Evidence was introduced by the state at the preliminary examination, but the defendant offered no evidence, nor was he represented by counsel.
On February 13, 1963, an Information was filed in the district court charging the defendant with the larceny of the Buick automobile, but it failed to allege that the value of the automboile was over $50. Later, and on March 12, 1963, the Information was amended and alleged the value of the automobile to be in excess of $50, which was the only amendment made.
On February 21, 1963, the defendant was brought before the Honorable L. A. McNalley, district judge, at which time Mr. Harold Henderson, a practicing attorney of Saline County, was appointed to represent him in the action.
On April 4, 1963, the county attorney wrote counsel for the defendant advising that in the event the defendant was convicted, the state would ask the court to impose sentence pursuant to the Habitual Criminal Act.
On April 5, 1963, at the defendant's request, a commission of doctors was appointed to examine him to determine whether he was able to comprehend his position and make his defense. The report of the commission finding the defendant to be sane, competent and able to stand trial was filed April 15, 1963.
On April 16, 1963, the case came on for trial before the Honorable John I. Young upon the amended Information and the defendant's plea of not guilty. The court accepted the commission's report, and the following proceedings occurred:
Whereupon, a jury was selected and duly impaneled, and the state presented its evidence and rested. The defendant's motion for discharge upon the ground the state's evidence was not sufficient to establish his guilt was overruled, and he waived his opening statement, offered no evidence, and rested his case. Thereupon, the trial was adjourned until the following day.
On the following morning, April 17, 1963, the trial was resumed. The jury was fully instructed and arguments of counsel for the state and the defendant were made to the jury. At the conclusion of the argument of his counsel, and notwithstanding the fact he did not testify in his own behalf, the defendant requested he be permitted, personally, to address the jury in his own behalf. The request was denied by the court. Following the closing argument of the state, the jury retired and on that same day, it returned its verdict finding the defendant guilty of larceny of the automobile as charged in the amended Information.
A motion for a new trial was timely filed. The defendant personally argued, as did his attorney, in support of the motion, which was overruled by the district court on April 29, 1963.
The sentencing of the defendant was continued until May 9, 1963. On that date the state introduced evidence consisting of duly certified copies of the defendat's prior felony convictions; one of grand larceny in the Circuit Court of Washington County, Arkansas, on April 24, 1951, and another of larceny of an automobile in the District Court of Montgomery County, Kansas, on September 8, 1952. No objection was made by the defendant or his attorney to the introduction of such evidence and the court proceeded to sentence the defendant pursuant to the Habitual Criminal Act for the term of years heretofore stated. No appeal was taken by the defendant from the judgment and sentence rendered, or from the order overruling the motion for a new trial.
On August 28, 1964, the defendant wrote the district judge and requested his letter be treated as a motion to vacate and set aside the sentence pursuant to K.S.A. 60-1507. He alleged as grounds for relief that (1) he did not have counsel at his preliminary examination or at arraignment and that counsel appointed to represent him in the district court was incompetent, resulting in his not having a fair and impartial trial; (2) in accordance with Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 () he was entitled to consult with counsel as soon as the investigation conducted by the highway patrol made him a prime suspect, and (3) he was unlawfully sentenced as an habitual criminal, and that prior convictions relied upon to enhance the penalty were null and void because of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
On September 3, 1964, the district court held a hearing on the defendant's motion. After reviewing the record and examining the motion, it made findings of fact and conclusions of law that no substantial questions of law or issues of fact were presented, and that neither the defendant's presence at the hearing nor the appointment of counsel to represent him was necessary; that his sentence was proper, and that the motion should be denied.
On October 1, 1964, the defendant filed...
To continue reading
Request your trial
-
Mann v. State
...882, held that those doctrines should apply only to those cases that were commenced after the decisions were announced. (Addington v. State, 198 Kan. 228, 424 P.2d 871.) There is no indication in the record here presented which even suggests that the substantial rights of the appellant were......
-
State v. Greenlee
...of the exercise of that discretion for arbitrariness. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Addington, 198 Kan. 228, Syl. P 4, 424 P.2d 871 (1967). Considering the seriousness of the drug problem in society today, particularly its devastating ef......
-
State v. Young
...defendant concedes that discretion may be utilized in determining to whom the Habitual Criminal Act may be applied. In Addington v. State, 198 Kan. 228, 424 P.2d 871, it was 'In this jurisdiction, it is the duty of the county attorney to conduct criminal prosecutions on behalf of the state,......
-
State v. Lewis
...has long recognized and approved the use of reconstructed records. (State v. Jefferson, 204 Kan. 50, 52, 460 P.2d 610; Addington v. State, 198 Kan. 228, 424 P.2d 871; State v. Allen, 111 Kan. 3, 206 P. 340.) The judge's notes cover a substantial portion of the hearing. They appear to cover ......