Cox v. State

• Decision Date: 17 July 1970
• Docket Number: No. 46064,46064
• Citation: 205 Kan. 867,473 P.2d 106
• Parties: Eddie David COX, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 106

473 P.2d 106

205 Kan. 867

Eddie David COX, Appellee, v. STATE of Kansas, Appellant.

No. 46064.

Supreme Court of Kansas.

July 17, 1970.

Syllabus by the Court

1. K.S.A. 21-449 provides for two distinct offenses, kidnaping in the first degree with harm to the victim, and kidnaping in the first degree without harm to the victim, and provides a separate penalty for each.

2. The mere pendency of an indictment, information or complaint does not constitute jeopardy.

3. A mere plea of not guilty to an indictment or information does not amount to putting an accused in jeopardy.

4. A plea of guilty to an indictment or information is jeopardy but if the accused withdraws a plea of guilty with the consent of the court, he waives his defense of former jeopardy.

5. It is the general rule that an accused is in jeopardy within the meaning of the guarantee against double jeopardy contained in our constitutions when he is put on trial in a court of competent jurisdiction upon an indictment or information sufficient in form and substance to sustain a conviction, and a jury has been empaneled and sworn or a plea of guilty has been entered.

6. If, before the accused enters his plea of guilty, the information is amended to include only a lesser offense than that on which the accused was first tried, convicted and a new trial ordered, he is not placed in jeopardy the second time for a greater offense included in the original information.

7. No amendment of an information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against an accused on a lesser one included therein and a simple motion made verbally in open court, or an announcement of such intention is sufficient if made before the trial begins.

8. Implicit in a knowledgeable plea of guilty is that the accused be advised of the nature of the charge against him and the consequences of his plea of guilty but it is not necessary that the trial judge ritualistically and personally advise the accused of these matters. It is sufficient if the accused be advised of the matters regardless of the source of information.

9. An offender convicted of a crime carrying a penalty of not less than twenty years imprisonment could have been sentenced to life imprisonment under the provisions of K.S.A. 21-109.

10. In a proceeding under K.S.A. 60-1507, the record is examined and it is held, the petitioner did not meet the burden of proof and establish coercion in his plea of guilty by a preponderance of the evidence.

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellant.

Charles Bogan, of Winn, Bogan & Johnson, Abilene, argued the cause and was on the brief for appellee.

HATCHER, Commissioner:

This is an appeal by the state from a judgment in a K.S.A. 60-1507 proceeding setting aside a conviction of second degree kidnaping and felonious assault because of double jeopardy and a coerced plea of guilty.

This proceeding marks the fifth time the petitioner, Eddie David Cox, has been before the district court and this court in connection with the charge of kidnaping and felonious assault.

The appellee, hereinafter referred to as petitioner, filed the petition now under consideration on October 3, 1969. A hearing was held which was attended by the petitioner and his attorney. Following the hearing the trial court made findings of fact and conclusions of law and entered an order setting aside the conviction. The petitioner was released from custody.

The state has appealed contending generally the trial court erred in concluding that the petitioner was put twice in jeopardy and that his plea of guilty was the result of coercion.

Before considering detailed findings of the trial court and the specific objections made to this court, it will perhaps be helpful if we review the history and facts of the case.

The petitioner was originally charged in three counts-assault with intent to kill, first degree kidnaping with harm to the victim and robbery in the first degree. A plea of not guilty was entered to each of the counts and trial was commenced on March 14, 1960. Highly summarized, evidence was presented at the trial as follows:

Lyle Koberstein, a complaining witness, testified that on the day he was kidnaped he was a patrolman for the Junction City Police Department. On that date he was directed by a call from the police station to go to Gerald's Jewelry Store where he found Eddie David Cox attempting to cash a check. He and Cox left the jewelry store together for the police station in Koberstein's car. While in transit Cox drew a gun from underneath his coat and pointed it at Koberstein. After driving the car at Cox's direction to a place outside of town, Koberstein was pushed out of the car by Cox. At Cox's direction Koberstein reached to unsnap his gun and tried to unhook his gun to draw it. As that was happening Cox fired a shot which hit Koberstein in the right arm. Another shot was fired which struck the lapel of Koberstein's jacket. Koberstein then escaped by running down a grade into some small trees and shrubbery.

The only testimony offered by Cox in that criminal trial consisted of a statement by an officer of the Junction City Police Department concerning the location of Koberstein's car when it was located at 1:30 o'clock p. m. on October 31, 1959.

At the close of the state's evidence the count charging first degree robbery was dismissed.

The jury returned a verdict finding the petitioner guilty of assault with intent to kill and guilty of kidnaping in the first degree but stated that the kidnaping occurred without harm to the victim.

On appeal to this court (State v. Cox, 188 Kan. 500, 363 P.2d 528) petitioner was granted a new trial because an improper form of verdict was submitted to the jury.

On September 8, 1961, petitioner was again arraigned on counts one and two-assault with intent to kill and first degree kidnaping with harm to the victim. The only objection made at the arraignment was 'that the defendant was not properly in court.' At the arraignment the petitioner stood mute and the court entered a plea of not guilty.

On September 12, 1961, the petitioner again appeared in court in person and by his attorneys and requested permission to change his plea to guilty. The colloquy which occurred between the trial court, the petitioner and his attorneys will be presented later herein. It will suffice to say at this point that the petitioner was permitted to withdraw the plea of not guilty and entered a plea of guilty of assault with intent to kill and second degree kidnaping. He was sentenced from one to ten years on he assault charge and twenty-five years for kidnaping in the second degree. The sentences were to run concurrently.

Later the petitioner filed a motion to correct his sentence and the sentencing court changed the sentence of twenty-five years to not more than 30 years on the second degree kidnaping conviction. At the hearing on the motion to correct, the state attempted to introduce evidence of prior felony convictions for the purpose of invoking the provisions of the habitual criminal act. The evidence was excluded by the trial court and the ruling was affirmed by this court is State v. Cox, 194 Kan. 120, 397 P.2d 406.

On September 7, 1965, the petitioner initiated his first proceeding under the provisions of K.S.A. 60-1507 raising the issue of double jeopardy. After a full evidentiary hearing the trial court sustained petitioner's contention that he had been twice put in jeopardy and ordered his release from confinement. This court stayed the release order pending the disposition of the case on appeal.

On appeal to this court it was held that the petitioner had not been twice placed in jeopardy and the trial court's order releasing the petitioner was reversed. (See Cox v. State, 197 Kan. 395, 416 P.2d 741.) The basis of this court's decision was that the granting of a new trial places the parties in the same position as if a new trial had not been had and after the granting of a new trial a defendant could be tried on the same information as in the original trial although he had been convicted of a lesser offense. It was further held that the prohibition of double jeopardy under the Fifth Amendment to the Constitution of the United States was not applicable to state action by force of the Fourteenth Amendment. The decision followed a long line of decisions pronounced by this court and Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed.288, and related cases.

Following the above decision petitioner sought and failed to obtain relief by way of habeas corpus in the federal courts. (See Cox v. Crouse, 10 Cir., 376 F.2d 824.)

On September 21, 1966, the petitioner filed another motion under the provisions of K.S.A. 60-1507 to vacate his sentence on the ground his plea of guilty was coerced. After a full hearing relief was denied and on appeal to this court the judgment was affirmed. It was held that an abuse of remedy existed in the further use by appellant of the provisions of K.S.A. 60-1507. (See Cox v. State, 200 Kan. 198, 434 P.2d 843.)

We now reach the subject of the present appeal. We first note that in the present proceeding and in the proceedings heretofore discussed, the petitioner has at all times been represented by able trial lawyers.

The trial court made full and comprehensive findings of fact. We quote insofar as material here:

'6. There was no in-court interrogation of the defendant concerning his plea by the district court.

'7. The evidence adduced at this present hearing was that the petitioner had conferred with and been advised by two counsel concerning his rights and the consequence of his plea. There was no discussion concerning double jeopardy.

'11. On June 23d, 1969, the Supreme Court of the United States handed down its decision of Benton v. Maryland, 89 Supreme Court 2056,...