Cooper v. State, 44445

• Citation: 411 P.2d 652,196 Kan. 421
• Decision Date: 05 March 1966
• Docket Number: No. 44445,44445
• Parties: Clarence William COOPER, Appellant, v. The STATE of Kansas Appellee.
• Court: United States State Supreme Court of Kansas

Page 652

411 P.2d 652

196 Kan. 421

Clarence William COOPER, Appellant, v. The STATE of Kansas Appellee.

No. 44445.

Supreme Court of Kansas.

March 5, 1966.

Syllabus by the Court

1. Undue delay in bringing one accused of crime before a magistrate is not, of itself, a denial of due process. It is only where a preliminary delay in some way deprives an accused of a fair trial that there can be a denial of due process.

2. The guaranty of a speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination, but rather to the trial held after an indictment is returned or an information is filed, and at which the issue of guilt or innocence is to be determined.

3. K.S.A. 62-1431 and 62-1432 are designed to give effect to the constitutional guaranty of a speedy trial, and those statutes give legislative definition to the term.

4. Where one accused of crime pleads guilty to the offense charged against him, he thereby waives his right to a speedy trial (following Moore v. Hand, 187 Kan. 260, 356 P.2d 809).

5. A person accused of felony is entitled to consult with counsel of his choice prior to his preliminary examination and, pursuant to the provisions of K.S.A. 62-615, may be assisted by counsel at such examination, but he has no constitutional right to be provided with counsel at that hearing.

6. The failure to provide an accused with counsel at his preliminary examination does not constitute reversible error in the absence of a showing that the substantial rights of the accused were prejudiced thereby.

7. The uncorroborated statements of a movant made in support of a motion brought by him pursuant to K.S.A. 60-1507, to set aside a sentence previously imposed against him, are insufficient to sustain his burden of proof.

8. The record is examined in a 60-1507 action and it is held, under the facts set forth in the opinion, the trial court did not err in overruling the motion to vacate the plaintiff's sentence.

Kanneth L. Briggs, Fort Scott, argued the cause, and was on the brief, for appellant.

Charles M. Warren, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief, for appellee.

FONTRON, Justice.

This appeal is from an order of the district court of Bourbon County overruling plaintiff's motion for relief under K.S.A. 60-1507.

The facts are not complicated. On December 21, 1963, the plaintiff was arrested without a warrant by police officers of Fort Scott, Kansas, and placed in jail. On January 2, 1964, a complaint was filed charging plaintiff (appellant herein) with three counts of soliciting children under the age of fifteen years with the intent to induce them to commit immoral acts.

The following day, January 3, 1964, plaintiff was taken before the county court of Bourbon County, where he entered a plea of not guilty to all three charges and waived preliminary hearing. At these proceedings, plaintiff was not represented by counsel.

Three days later, on January 6, 1964, plaintiff appeared before the Bourbon County District Court where the information was read and explained to him, and Howard Hudson, a reputable attorney of Fort Scott, was appointed to represent him. On February 12, 1964, the plaintiff again appeared in district court accompanied by appointed counsel where, after counts one and three of the information were dismissed, he entered a plea of guilty to court two and was sentenced to the Kansas State Penitentiary for a term of not less than one nor more than five years. The record indicates that plaintiff was sent to the Kansas State Reception and Diagnostic Center for examination before beginning the prison sentence. No motion for a new trial was filed and no appeal was taken from the sentence imposed.

Subsequently, plaintiff filed a motion pursuant to K.S.A. 60-1507 attacking the validity of his sentence and seeking to be released from confinement. The district court set the matter for trial, again appointed Mr. Hudson as counsel, and ordered plaintiff returned for an evidentiary hearing at which both parties introduced testimony. At the conclusion of the hearing, the district court prepared a comprehensive memorandum in which is summarized the testimony of the witnesses, made findings of fact, and concluded that plaintiff had not sustained his burden of proof but had failed to establish grounds for discharge. Plaintiff's motion was therefore denied. Notice of appeal was filed by plaintiff pro se and Kenneth L. Briggs, a responsible member of the Bourbon County Bar, was appointed to represent the appellant.

On this appeal, the plaintiff complains that his constitutional rights were abridged in three particulars: (1) That he was not arraigned until thirteen days after his arrest; (2) that he was not represented by counsel at his arraignment; and (3) that while confined he was refused permission to consult an attorney from December 21, 1963, to January 3, 1964.

It is evident that the plaintiff's references to arraignment are intended to allude to his appearance before the county court, and they will be so considered by us.

Needless to say, this court does not approve of unwarranted delay, either in the filing of formal charges against a suspect who is confined in jail, or in taking him before a proper magistrate for examination. We subscribe to the prevailing view that when a person is arrested for a crime, either with or without a warrant, he is to be taken before a magistrate with reasonable promptness and without unnecessary delay. (State v. Beebe, 13 Kan. 589; 5 Am.Jur.2d, Arrest, § 77, p. 763.)

The state makes no attempt to justify its failure to take the plaintiff before an examining magistrate until after he had languished in jail for nearly two weeks. Unexplained, a delay of such proportions indicates indifference on the part of law enforcement officers toward their official responsibilities. It also infringes the right of every person arrested for a crime to an early examination before a magistrate (K.S.A. 62-610, 62-614). We are not disposed to condone such official shortcoming.

The present action, however, is not one to test the validity of an arrest, nor one to recover damages for an illegal detention. Neither is it a proceeding to gain release from an unlawful custody prior to trial. This case attacks the validity of the sentence pronounced against the plaintiff, which is claimed to be illegal on the premise, among others, that plaintiff was not promptly taken before a magistrate after his arrest.

We are cited to no authority holding that undue delay in taking a prisoner before a magistrate is of itself a denial of due process. It is only where the unwarranted delay has prejudiced the accused upon his trial that it may be said to violate the precepts of due process.

This court has held against the contention advanced here by the appellant. In Rutledge v. Hundspeth, 169 Kan. 243, 218 P.2d 241, a proceeding in habeas corpus, it was argued that the petitioner was entitled to be released from the penitentiary because he had been confined in jail for five days before a warrant was read to him. In rejecting this contention, we said:

'* * * A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. See Miller v. Hudspeth [164 Kan. 688, 192 P.2d 147], supra. We considered an argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P.id 1188, 1189. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said:

"Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner's uncorroborated statement, has long since ended and its legality is not now subject to consideration in a habeas corpus proceeding.'

'What would have been our action if we had been asked for a writ while petitioner was being held without a warrant we need not say. Without conceding there was anything unlawful about the five days' incarceration without a warrant it may safely be said that such illegality does not render void the subsequent judgment of the trial court.' (pp. 244, 245, 218 P.2d p. 242.)

The foregoing passage from the Rutledge opinion was quoted with approval in Converse v. Hand, 185 Kan. 112, 114, 304 P.2d 874.

Should it be suggested that the conclusion reached in the Rutledge case conflicts with the rule enunciated in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and followed in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, it would be sufficient to reply that this court has held the rule of those federal cases to be inapplicable in this jurisdiction. (State v. Stubbs, 195 Kan. 396, 407 P.2d 215.) The reasons which prompted our refusal to follow the McNabb rule are adequately set forth in Stubbs and we continue to view those reasons as valid.

We would further point out, however, that in our judgment there is no basic contradiction between the rule expressed in McNabb and Mallory and the rationale of Rutledge. In both federal cases, the court held that incriminating statements were not admissible in evidence where they had been elicited from an accused during a period of illegal detention, in violation of Rule 5(a), Federal Rules of Criminal Procedure. But in Rutledge no confession was involved; no confession was obtained from the defendant while he was wrongfully held in custody, nor was one introduced in evidence at the time he entered his plea of...