Brewer v. Hudspeth

• Decision Date: 11 December 1948
• Docket Number: 37351.
• Citation: Brewer v. Hudspeth, 166 Kan. 263, 200 P.2d 312 (Kan. 1948)
• Parties: BREWER v. HUDSPETH.
• Court: Kansas Supreme Court

200 P.2d 312

166 Kan. 263

BREWER v. HUDSPETH.

No. 37351.

Supreme Court of Kansas

December 11, 1948

Rehearing Denied Dec. 20, 1948.

Syllabus by the Court.

The record in a habeas corpus proceeding examined, considered and held, the petitioner is not entitled to a writ.

Charles W. Lowder, of Kansas City, for petitioner.

Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for respondent.

WEDELL Justice.

This is an original proceeding in habeas corpus.

On August 21, 1947, the petitioner was convicted, pursuant to a plea of guilty, of burglary in the second degree and of larceny while committing the burglary, and was sentenced to confinement in the state penitentiary on the burglary conviction for a term of not less than five years or more than ten years, as provided in G.S.1935, 21-523, and on the larceny conviction for not less than one year and not more than five years, as provided by G.S.1935, 21-534, the sentences to run consecutively.

While various grounds are alleged for the issuance of a writ counsel for petitioner now stresses two grounds, namely, lack of proper representation of counsel appointed by the district court and that the judgment and sentence are void by reason of failure to have a fair and impartial trial.

We have carefully examined all grounds of the petition, other than the two stated, and are convinced that under the repeated decisions of this court none of them can be sustained.

The first ground now argued is stated in the amended petition filed pursuant to a motion and order to make the petition definite and certain relative to the alleged improper representation by counsel in the criminal action. The allegation reads:

'* * * that the court appointed counsel on the 21st day of August, 1947, about ten minutes before the court passed judgment and sentence on the petitioner; that the petitioner did not have time to talk to the said attorney about his case; that the said attorney did not inform him of his rights; that the said attorney told him that, as he did not have any money the only thing for him to do was to plead guilty; that no competent counsel would have allowed the petitioner to be forced to trial without being indicted by a grand jury, nor allowed all of his constitutional rights to be denied him, nor allowed the officials to put the rush act on him and force him to enter a coerced plea of guilty against his will and wishes under pressure of coercion, duress, trickery, threats and deceit. That by reason of such actions on the part of the officers of the court and the prosecuting officials in charge of his case, he was denied the right to assistance of counsel in violation of the provisions of the 6th Amendment of the Constitution of the United States of America.'

Respondent has generally denied these allegations. The averment of improper representation due to the fact petitioner was not charged by a grand jury indictment is without merit. The affidavit of the county attorney at the time of plea and sentence, in substance, discloses:

The petitioner and two others involved in the offense freely and voluntarily confessed the entire crime and freely signed a written confession before him and two sheriffs; petitioner requested him 'to get the thing over as soon as possible, as I want to start doing my time and maybe I will learn a lesson'; he fully explained petitioner's rights to him but that notwithstanding such explanation the petitioner insisted on entering his plea on August 20; on that date petitioner waived his preliminary hearing but was informed it would be impossible to enter his plea before the district court until the following day; when the district court ascertained petitioner was without counsel and without funds to employ counsel the court immediately appointed Robert T. Patterson, a practicing attorney who was present in the courtroom, to advise and represent petitioner; Mr. Patterson requested an opportunity to confer privately with the petitioner, which was granted; Mr. Patterson examined the statutes and conferred with petitioner approximately one hour, after which petitioner and his counsel advised that petitioner was desirous of entering his plea immediately; the court directed the reporter to make a transcript of the proceeding and that was done; petitioner voluntarily entered a plea of guilty; there was no pressure, promise or coercion of any character exerted to obtain the plea and petitioner was deprived of no rights.

An affidavit of the district judge, in substance, discloses: He had been advised of petitioner's written confession but that prior to arraignment the appointed counsel for petitioner; Mr. Patterson conferred with petitioner privately and at a later hour the court was advised by such counsel and the county attorney that petitioner was anxious to be arraigned on that day, August 21; that insofar as he knew petitioner entered his plea voluntarily and without pressure, promises or coercion.

The affidavit of Mr. Patterson discloses, in substance: The district court appointed him to represent petitioner and recessed court for the purpose of permitting him to counsel with petitioner; he was advised by petitioner that he had made a free and voluntary confession to the county attorney, that he had committed the offense charged and in the manner detailed to the county attorney; he reviewed the pertinent statutes and advised petitioner he was entitled to a free and impartial trial by jury; after discussing every detail of the case petitioner informed him he had committed the offense and desired to enter his plea in order to start serving his sentence as soon as it could be arranged; the matter was handled just as petitioner wished it to be; his plea was free, intelligent and voluntary.

A review of this portion of the record convinces us petitioner has not met the burden of proof on the first ground alleged. It is, however, argued by his counsel that the charge of inadequate representation is also involved in the second ground. We shall bear that contention in mind and refer to it later.

The second ground urged is that petitioner did not have a fair and impartial trial. The specific point under this contention is that the district court erred in not having a hearing prior to the plea to determine petitioner's mental competency.

This court admits that such reason is not alleged in either petition and that it entered the case for the first time on oral argument by petitioner's counsel before this court and was followed by an inquiry by a member of this court. The inquiry was not made on the theory we were prejudging the question but only to make certain petitioner's rights were fully protected. No blame is attached to petitioner's present counsel for failure to allege the point as a ground for release. He did not prepare the original petition. Counsel for respondent was, of course, not factually prepared to meet the point. Although the latter has procured pertinent supplemental affidavits they insist the question is not properly before us and should not be considered. Respondent's counsel stress the fact it is not even now contended petitioner was mentally incompetent to understand his plea or demand a valid defense. With commendable frankness petitioner's counsel concedes that but asserts the facts before the district court at the time of sentence compelled it, as a matter of law, to have a hearing touching petitioner's sanity before it accepted his plea. The question of petitioner's mental capacity was raised in connection with a letter addressed to the warden by the judge of the district court at the time of petitioner's commitment. A copy of the letter is appended to this opinion and is made a part hereof.

A supplemental affidavit of the district judge filed by respondent, in substance, discloses:

The affidavit was made at the request of the attorney general; he was not acquainted with the petitioner or any members of his family prior to August 21, 1947; the county attorney informed him of petitioner's desire to enter a plea of guilty; he inquired of peace officers into the history and background of petitioner and was informed as follows:

Petitioner desired to enter his plea as soon as possible; that approximately thirty or thirty-five years ago and prior to the birth of petitioner the father of petitioner had escaped from a mental institution in the state of Missouri; that continuously since that escape the father had lived in Treece, Cherokee...