Gilchrist, Application of
| Decision Date | 25 October 1985 |
| Docket Number | No. 57769,57769 |
| Citation | 708 P.2d 977,238 Kan. 202 |
| Parties | In the Matter of the Application of Brad Lee GILCHRIST For a Writ of Habeas Corpus. Brad Lee GILCHRIST, Appellant, v. CITY OF OSAWATOMIE, Kansas, the Honorable John A. Wilson, Osawatomie Municipal Court Judge; and The Sheriff of Miami County, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Generally, a writ of habeas corpus is not a substitute for appeal in a criminal case. However, where constitutional rights of the accused are in issue, habeas 2. A defendant who is tried, convicted and sentenced to imprisonment in municipal court for violation of a municipal ordinance is entitled to assistance of counsel. The right to counsel does not depend upon the character of the court in which defendant is charged.
corpus may be available as a remedy even where no direct appeal was taken.
3. When any person is accused of an offense, whether misdemeanor or felony, for which he or she may be imprisoned, that person must be informed in clear and unequivocal language of his right to retained or appointed counsel.
4. In a municipal court, the constitutional requirement to clearly and articulately apprise a non-indigent accused of his right to counsel is met where the accused acknowledges he understood the charge against him and potential penalty, has experience in criminal procedure and access to an attorney, and admits the trial court inquired of him whether he intended to retain counsel.
5. In a municipal court, a thorough inquiry should be made by the court to ascertain if a defendant knowingly and intelligently waived his right to counsel, and minimum standards of inquiry are set forth.
6. A suggested waiver of counsel form to be used by municipal courts in cases where an accused may be deprived of his liberty is recommended and set forth.
7. In a municipal court, a non-indigent accused's waiver of his right to counsel is knowingly and intelligently made where the accused admits he informed the trial court he did not intend to retain counsel, was free on bail and had sufficient time in which to retain counsel for trial, had retained counsel to represent him in other criminal proceedings, and was financially able to retain counsel in the proceedings in question.
8. An accused has a constitutional right to counsel at the sentencing stage in a criminal proceeding and, where the accused requests that counsel be present at the sentencing, he is entitled to a continuance in order to retain counsel.
James F. Vano, Overland Park, argued the cause, and David R. Gilman, Overland Park, was with him on brief for appellant.
Craig S. Powell of McQueary & Powell, Osawatomie, argued the cause and was on brief for appellees City of Osawatomie and John A. Wilson.
Ed L. Randels, Asst. Co. Atty., and Robert T. Stephan, Atty. Gen., were on brief for appellee sheriff of Miami County.
This is an appeal from the judgment of the district court of Miami County denying a petition for a writ of habeas corpus.
Appellant, Brad Lee Gilchrist, was charged in the municipal court of Osawatomie with battery under the Osawatomie Municipal Code. The complaint charged Gilchrist with grabbing one Linda Cunningham by the hair and throwing her into the bushes on December 9, 1984.
At some point, although not part of the record on appeal, Gilchrist claims he filed a complaint against Linda Cunningham for battery arising out of the same incident.
On December 13, 1984, Gilchrist made his first appearance before the municipal court judge. No record was made of the proceedings. Gilchrist pled not guilty and trial was set for December 20, 1984.
Gilchrist appeared without counsel in the municipal court on December 20, 1984. A trial was held and Gilchrist was found guilty of battery. The trial was in municipal court and, once again, no record was made.
The trial court continued the proceeding to the following day for sentencing. Gilchrist again appeared without counsel and told the court he wanted counsel present. In spite of the request, the court proceeded to fine him $300 and sentence him to 90 days in jail.
The trial court advised Gilchrist he had 10 days to appeal the municipal court judgment.
Gilchrist notified his retained counsel of the date of his conviction and that he wished to appeal. No appeal was taken.
On January 11, 1985, Gilchrist was confined to the Miami County jail. That same day, Gilchrist filed a petition for a writ of habeas corpus with the district court of Miami County. Appellant's contention in support of his petition is that he was denied his Sixth Amendment right to counsel in the municipal court proceedings.
A hearing was held on the writ before the district court on January 15, 1985. At the hearing, the municipal judge testified that at the time of appellant's first appearance, the charges against him were read and the penalties explained. Additionally, the municipal judge testified he knew Gilchrist from prior court proceedings where Gilchrist was represented by counsel. He knew Gilchrist was not indigent. He asked the appellant if he intended to have an attorney at this trial. The appellant replied he did not wish to have an attorney.
Appellant admitted under oath that this testimony was correct. However, he testified that since he had filed a "cross-complaint" against the complaining witness for battery, he assumed the city attorney would represent his interests. Thus, he claims his waiver of the right to counsel was not "knowingly and intelligently" made.
At the sentencing hearing Gilchrist appeared without counsel and specifically requested he be entitled to have his counsel present. The municipal judge denied the request on the grounds it would be unnecessary since Gilchrist would have ten days to appeal the judgment with a de novo trial in the district court.
Finally, appellant testified he employed counsel on either December 26 or December 27, 1984, to represent him in the case on appeal. According to the appellant, he told his counsel, David Gilman, he had until December 31, 1984, to perfect the appeal. No appeal was taken.
At the conclusion of the hearing, the district court found it "was not satisfied with the procedure of the Court in discussing with the Defendant his right to counsel and securing a waiver." But, nevertheless, it denied the writ, because Gilchrist failed to appeal and a writ of habeas corpus is not a substitute for an appeal. Additionally, the district court found Gilchrist was not indigent, had employed counsel in the past and his claim that he believed the city attorney was obligated to both prosecute and defend him since there was a cross-complaint on file had no credibility. Though not specifically stated, it is implicit in the findings that the district court also found Gilchrist knowingly waived his right to counsel.
After the writ was denied, Gilchrist was released on bond, pending this appeal.
The first question raised by the petitioner's appeal is whether a petition for writ of habeas corpus can be entertained, since petitioner failed to perfect an appeal to the district court.
K.S.A. 1984 Supp. 22-3609 allows ten days for an appeal to the district court from the judgment of a municipal court. The appeal stays all proceedings upon the municipal court judgment and the case is tried de novo in the district court. K.S.A.1984 Supp. 22-3610.
At the hearing on his application for a writ of habeas corpus, appellant testified he employed an attorney to represent him on appeal just a few days after he was sentenced. Additionally, the municipal court judge testified that he advised appellant of his statutory right to appeal after the sentencing.
No reason is given why an appeal was not perfected and appellant does not raise an ineffective assistance of counsel claim.
We have held that a petition for habeas corpus is not a substitute for appeal in a criminal case. Hall v. Hand, 190 Kan. 482, 484, 375 P.2d 632 (1962); State v. Shores, 187 Kan. 492, 357 P.2d 798 (1960). While we have found no Kansas authority applying this rule to the failure to take an appeal from the municipal court, the general rule applies.
It is generally held if the constitutional rights of the accused are at issue, habeas corpus is available as a remedy under certain circumstances even though no direct appeal was taken. While there are a number of Kansas cases dealing with post-trial release for violation of a prisoner's constitutional rights, they relate to K.S.A. 60-1507. K.S.A. 60-1507 was not available to petitioner since it may be used only by a prisoner in custody under sentence of a court of general jurisdiction. A municipal court is not a court of general jurisdiction.
The general rule regarding the scope of remedy on a writ of habeas corpus is set out at 39 Am.Jur.2d, Habeas Corpus § 11, p. 185:
Thus, we must consider whether a constitutional right of the accused is in issue.
Petitioner alleges he was not properly advised of his right to counsel in the municipal court proceedings, nor did he make a valid waiver of his right to counsel.
In a criminal prosecution, the Sixth Amendment mandates that one charged with a crime is entitled to the assistance of counse...
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...and the fact that a lawyer is trained in the law.” Daniels, 2 Kan.App.2d at 607–08 .See In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977 (1985); State v. Williams, 226 Kan. 82, 83–84, 595 P.2d 1104 (1979). Under that paradigm, we would hold that a defendant's un......
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Appellate Decisions
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