Brown v. State
| Decision Date | 04 March 1967 |
| Docket Number | No. 44642,44642 |
| Citation | 198 Kan. 345,424 P.2d 576 |
| Parties | Orville Clyde BROWN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When the provisions of the habitual criminal statute (K.S.A. 21-107a) are to be invoked, the requirements of due process are reasonable notice and an opportunity for a full and complete hearing, with the right to aid of competent counsel.
2. No particular form of notice of intention to invoke the habitual criminal act is necessary; only reasonable notice of such intention is required.
3. Reasonable notice before sentence that the habitual criminal act will invoked is a right afforded an accused, but one which he may waive.
4. In this jurisdiction an indigent accused had no constitutional right to appointed counsel at his preliminary examination, and failure to provide counsel at such time does not constitute reversible error, absent a showing of prejudice to his substantial rights.
5. In a proceeding instituted under the provisions of K.S.A. 60-1507, wherein the petitioner was accorded a full evidentiary hearing with the aid of counsel, the record is examined, and it is held, the district court did not err in finding: (1) the petitioner had notice of the state's intention to invoke the provisions of the habitual criminal act in compliance with the requirements of due process; (2) any objection to the form of the notice was waived; and (3) the failure to appoint counsel for the petitioner at his preliminary hearing did not violate his constitutional rights.
Gary L. Dinges, Hutchinson, argued the cause, and Matthew J. Dowd, Hutchinson, was with him on the brief, for appellant.
Richard J. Rome, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., Raymond F. Berkley and Lane H. Cronhardt, Asst. County Attys., were with him on the brief, for appellee.
This K.S.A. 60-1507 proceeding was previously before this court (Brown v. State, 196 Kan. 236, 409 P.2d 772) on the question of whether or not a petitioner's presence is required at the hearing on a motion attacking his sentence where there is a substantial issue of fact about events in which he participated.
Inasmuch as the essential facts are adequately recited in Brown v. State, supra, they will not be repeated. Petitioner's main contention at that time was that sentence was imposed without his having been given notice prior thereto that the state intended to invoke the provisions of the habitual criminal act (G.S.1949 (now K.S.A.) 21-107a). On appeal, this court held that where the sentencing court determined the petitioner's claim was substantial and an evidentiary hearing was necessary, the petitioner's presence was required because involved was a substantial issue of fact relating to his participation in certain events.
Pursuant to this court's mandate, a full evidentiary hearing was held February 9 and 10, 1966, with the petitioner and his counsel being present. Although the motion alleged several grounds, evidence was presented only on (1) the lack of notice of the state's intention to invoke the provisions of the habitual criminal act, and (2) the absence of the assistance of counsel at preliminary hearing. The other grounds were abandoned.
The district court, in denying the motion, made the following findings of fact regarding the issue of notice:
The district court concluded that the petitioner, in fact, had notice the state intended to invoke the provisions of the act; that by his conduct at the time of sentencing petitioner waived any objection to the form of notice; and that
'The fundamental requisites of due process have been satisfied by assistance of competent counsel and the opportunity for a full and complete hearing on the issue of former convictions or their admissibility and any defects in the notice found to be given have been waived.'
Although five assignments of error are raised on appeal, they may be condensed into two main points.
Petitioner first contends the court erred in concluding that prior to sentencing he had been given sufficient notice to satisfy the requirements of due process.
In our original opinion, Brown v. State, supra, after reviewing numerous state and federal cases, we emphasized that when the statute (K.S.A. 21-107a) is to be invoked, the fundamental requisites of due process are reasonable notice and an opportunity for a full and complete hearing, with the right to the aid of competent counsel.
No particular form of notice of intention to invoke the act is necessary; only reasonable notice of such intention is required. Notice need not be in writing; it may be verbally given to the accused by his attorney. (Fairbanks v. State, 196 Kan. 650, 413 P.2d 985; Goodwin v. State, 195 Kan. 414, 407 P.2d 528; Thompson v. State, 195 Kan. 318, 403 P.2d 1009.)
The evidence before the court at the evidentiary hearing was that the county attorney informed trial counsel on several occasions prior to trial that the act would be invoked if the trial resulted in a conviction. Petitioner stated to the court no claim was being made that there was any breach of duty on the part of his trial counsel. We need not pass on the correctness of the district court's ruling that the communication of such information by his attorney to the petitioner was privileged (K.S.A. 60-426), for in the absence of any contention that the attorney breached his duty in failing to notify the petitioner, we must presume that counsel discharged his duties with the utmost good faith and diligence and promptly informed the petitioner of any information material to the case. The district court's finding that the petitioner in fact had notice of the state's intention to invoke the act was supported by substantial, competent evidence and, hence, cannot be disturbed on appeal. (Lloyd v. State, 197 Kan. 389, 416 P.2d 766.)
The journal entry of judgment and sentence recites that Brown was
It is obvious that Brown was given ample opportunity to object to the notice given, or lack thereof, attack the records of prior convictions, and state why an enhanced sentence should not be imposed. The record reveals petitioner's counsel objected to the records solely on the basis they were not properly authenticated. The objection was overruled, and no other objections were lodged; neither was a recess nor a continuance requested. At the 60-1507 hearing petitioner...
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State v. Robinson
...statutes is required and, in the absence of a contrary statutory requirement, oral notice will suffice. Brown v. State , 198 Kan. 345, 347, 424 P.2d 576 (1967) (habitual criminal act invocation). In Brown , orally informing the defendant's trial counsel several times before trial that, if t......
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Mann v. State
...absent a showing of prejudice to his substantial rights. A number of our recent decisions to this effect are found in Brown v. State, 198 Kan. 345, 424 P.2d 576. * * * In addition, petitioner's voluntary plea of guilty to the charge against him constituted a waiver of any alleged irregulari......
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Allen v. State, 44822
...absent a showing of prejudice to his substantial rights. A number of our recent decisions to this effect are found in Brown v. State, 198 Kan. 345, 424 P.2d 576. Nor is a waiver of such examination rendered ineffective because the accused was without counsel at the time. (Powers v. State, 1......
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Jackson v. State
...his conduct as heretofore related was such as to constitute a waiver of the notice requirement. (See, Mann v. State, supra; Brown v. State, 198 Kan. 345, 424 P.2d 576.) Petitioner's additional complaint his constitutional rights were violated because he was compelled to furnish evidence aga......