Call v. State
| Decision Date | 11 December 1965 |
| Docket Number | No. 44270,44270 |
| Citation | 195 Kan. 688,408 P.2d 668 |
| Parties | Bill CALL, Appellant. v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The jurisdiction of a court to try a person accused of crime, or to accept his plea of guilty, is not divested by the fact that his arrest may have been irregular or unlawful.
2. There is a presumption in law that a public official will perform his duties in faithful observance of the law.
3. Although the law demands faithful and loyal representation of an accused by his counsel, either employed or court appointed, it does not guarantee the assistance of the most brilliant and most experienced counsel.
4. The adequacy of services rendered a client by his attorney must be gauged by the totality of his representation, not by analyzing fragmentary segments thereof in isolation.
5. Issues which have not been presented to the trial court will not be considered by this court on appeal.
6. The record in proceedings brought under K.S.A. 60-1507 are examined and it is held that the trial court is not shown to have erred in determining the issues presented to it from the files and records of the case itself without holding an evidentiary hearing in the petitioner's presence.
Reuben E. Weatherford, Jr., Independence, argued the cause, and was on the brief for appellant.
B. D. Watson, County Atty., Independence, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, and Monte K. Heasty, Asst. County Atty., Independence, were with him on the brief for appellee.
This appeal is from an order of the district court of Montgomery County, Kansas, overruling the appellant's motion for relief under provisions of K.S.A. 60-1507. In this opinion, the appellant will be designated as petitioner, or Call.
The petitioner was charged, jointly with three other persons, on five counts of issuing worthless checks of over $50.00 each, contrary to the provisions of G.S.1949, 21-554 (now K.S.A. 21-554). He entered pleas of guilty to all five charges and was sentenced on each charge to from one (1) to five (5) years in the pentientiary, the sentences to run concurrently. At his arraignment and at the time sentence was pronounced, petitioner was represented by appointed counsel, Ray A. Neale.
Sometime after his incarceration in the penitentiary, Call addressed a letter to the district judge asking that it be considered as a motion to vacate the sentence and judgment and the court, upon receiving the same, treated it as a motion filed under K.S.A. 60-1507. In his letter, the petitioner contended: First, that he was not represented by counsel during the arraignment; second, that he was not represented by counsel when he was called into the county attorney's office to make and sign a statement pertaining to the charges of which he was accused; third, that he was not advised of Rule 56, allowing appeal in a matter such as this; and fourth, that his court-appointed counsel was negligent, ineffective and incompetent for not having advised him of his right to take more time for the preparation of the defense.
The trial court held no evidentiary hearing but found that the petitioner had raised no factual questions or issues requiring his presence or requiring appointment of counsel. The court further found that the records and files in the case disclosed that the sentence was valid, and thereupon overruled the motion.
Thereafter, Call addressed a second letter to Judge Grant requesting that it be treated as a notice of appeal and asking for appointment of counsel. This letter, which is long and argumentative, appears to have been drafted with the purpose of controverting the specific findings made by the trial court. It does, however, substantially cover the same points set out in Call's first letter, which we shall hereafter refer to as a motion to vacate.
We shall consider the points raised by the motion in the order heretofore listed. The first claim, that the petitioner was not represented during his arraignment, rests on the following allegations: that prior to appointment of counsel, the trial court read the charges and asked if Call had anything to say on his behalf; that Call did make a statement on his own behalf; that the court also advised Call that he might, if he wished, question the arresting officer pertaining to the arrest; that Call did question the officer after he took the stand under oath; and that it was after these proceedings had been completed that counsel was appointed.
The record does not substantiate these allegations. Not only does the journal entry fail to reflect such proceedings, but the transcribed record of what transpired prior to and during the arraignment reveals that only the reading of the information took place prior to the appointment of counsel. Thus, the record itself refutes the petitioner's first claim
Assuming, however, that the record did bear out the petitioner's version, we are aware of no fundamental right which would have been abridged. The petitioner does not allege that he was asked to, or that he did, enter any pleas prior to the appointment of counsel. Neither does he assert that he made any statement which was used against him or which resulted in prejudice to him.
Even if, as he has alleged, the petitioner did question the arresting officer without counsel, we fail to comprehend how this fact would vitiate the sentence. Conceding, for the sake of argument, that irregularities in the arrest might have been developed under questioning of an attorney, the sentence itself would not be void by reason thereof. It is commonly, if not universally, held that jurisdiction of a court to try a person accused of crime, or to accept his plea of guilty, is not divested by the fact that his arrest was irregular or unlawful. (State v. Cook, 194 Kan. 495, 399 P.2d 835; State v. Wharton, 194 Kan. 694, 401 P.2d 906.)
Turning to the second point raised, the bare-bone allegation that the petitioner was not represented by counsel when called to the office of the county attorney to make and sign a statement does not suggest, or itself, any denial of a constitutional right. In the first place, whatever the statement may have been which was elicited from Call--and we are not informed of its contents--it was not introduced or used against him in this case. Call entered a plea of guilty. Consequently, whether the statement would or would not have been admissible in evidence, were it offered in evidence at a trial, is entirely irrelevant.
In the second place, the petitioner does not allege that the statement was involuntarily made. Neither does he allege that, before making the statement, he was not informed of his right to counsel or of his right to remain silent. In the absence of such allegations, we are entitled to assume that the petitioner was fully advised by the county attorney as to his constitutional rights. The law presumes that a public officer will perform his duty in faithful observance of the law. (Wright v. Federal Reserve Life Ins. Co., 131 Kan. 601, 605, 293 P. 945; State v. Emory, 193 Kan. 52, 55, 391 P.2d 1013.)
This court in Powers v. State, 194 Kan. 820, 402 P.2d 328, recently considered the right of an accused to appointed counsel at the preliminary stage of an investigation into a crime, and we there said:
'* * * [T]he Federal Supreme Court has never said one accused of crime is an incompetent person and entitled to counsel as such at every stage in a criminal proceeding.
'No case is cited which states or suggests that counsel must be provided at the investigation stage, or preliminary hearing stage, of a criminal case in Kansas, where the defendant has not requested counsel, has been informed of his rights to counsel, and makes an intelligent waiver, as the appellant did in the case presently before the court.' (p. 824, 402 P.2d p. 331.)
See also State v. King, 194 Kan. 629, 632, 400 P.2d 975, and State v. Stubbs, 195 Kan. ----, 407 P.2d 215.
As to the third point, the petitioner has not alleged that he was deprived of his right to appeal from the sentences imposed against him on his pleas of guilty but only...
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