Goodwin v. State

• Decision Date: 06 November 1965
• Docket Number: No. 44073,44073
• Citation: Goodwin v. State, 407 P.2d 528, 195 Kan. 414 (Kan. 1965)
• Parties: Robert L. GOODWIN, Appellant, v. The STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 528

407 P.2d 528

195 Kan. 414

Robert L. GOODWIN, Appellant, v. The STATE of Kansas, Appellee.

No. 44073.

Supreme Court of Kansas.

Nov. 6, 1965.

Syllabus by the Court

1. The term arraignment refers in general to the first step in the progress of a trial wherein the accused is called to the bar of the court, his identity established, he is informed of the charge against him and called upon to plead to that charge.

2. The appearance before an examining magistrate upon return of a warrant pursuant to K.S.A. 62-602 in a felony case is not properly termed an arraignment, there being no authority in such magistrate to arraign one charged with a felony.

3. There is no authority for or constitutional right to the assistance of courtappointed counsel for one accused of a felony upon his appearance before an examining magistrate upon return of a warrant pursuant to K.S.A. 62-602.

4. Where evidence of a previous conviction of a felony was received by a sentencing court pursuant to K.S.A. 21-107a at a time when the defendant was present and in court with his attorney and, being afforded the right to allocution, made no objection and in fact admitted the previous conviction, at a time when he had previously been advised by his attorney of the provisions of the habitual criminal act and that the same might be invoked against him, it is held, upon the record presented there was no denial of constitutional rights in any failure by the prosecution to give formal prior notice of the hearing.

5. Under the provisions of K.S.A. 60-1507(c) the sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

6. The burden of showing incompetent and inadequate counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the movant and it is not sustained by the unsupported and uncorroborated statements of the one convicted.

7. The mere fact an accused voluntarily makes a statement in the absence of counsel admitting the commission of a crime does not amount to a denial of constitutional right to assistance of counsel.

8. A judgment of conviction of crime carries with it a presumption of regularity, and where one convicted of a crime attacks such a judgment pursuant to K.S.A. 60-1507, on the ground that his constitutional rights were violated, he has the burden of proof to establish such fact by a preponderance of the evidence, and such burden is not sustained by unsupported and uncorroborated statements by the plaintiff (Huston v. State, 195 Kan. 140, 403 P.2d 122).

9. In a proceeding initiated under the provisions of K.S.A. 60-1507 to set aside the judgment and sentence in appellant's criminal action, wherein appellant had a full evidentiary hearing, the record is examined, and it is held: Appellant failed to sustain the burden of proving that his constitutional rights were violated, and the district court did not err in denying the relief sought.

Albert S. Teed, Hutchinson, for appellant.

Lane H. Cronhardt, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., Richard J. Rome, County Atty., and Raymond F. Berkley, Asst. County Atty., with him on brief for appellee.

HARMAN, Commissioner.

This is an appeal from an order denying relief sought pursuant to K.S.A. 60-1507. It appears that appellant, pursuant to a complaint duly made in the city court of the city of Hutchinson, was arrested by warrant dated April 27, 1964, charging him with burglary in the second degree, and that on April 28, 1964, he was brought into that court at which time he pleaded not guilty to the charge and requested a court-appointed attorney. On April 30, 1964, appellant, being present in person and by his attorney, Albert S. Teed, waived his preliminary hearing and was bound over to the district court of Reno county, Kansas, for trial. On May 4, 1964, he appeared in the latter court, being represented by Mr. Teed, his court-appointed attorney, and he pleaded guilty to the offense charged, and, the prosecution having offered into evidence an original journal entry dated December 5, 1957, showing appellant's conviction in the same court of a like offense, was sentenced to the state penitentiary as an habitual criminal. While there confined pursuant to this sentence appellant commenced this proceeding seeking to vacate and set it aside. The trial court appointed another attorney for appellant, granted a hearing at which appellant offered evidence, and thereafter denied the relief sought, from which order this appeal is taken.

At the hearing the appellant testified substantially as follows:

'That he is 24 years of age and had lived in Hutchinson approximately 15 years; that he was divorced; that he had a high school education; that on April 25, 1964, he was arrested at the Moose Club on North Lorraine in Hutchinson, Kansas, by the Hutchinson Police Department; that he was 'cuffed' and searched at the scene and taken to the police station Sunday 3:00 A.M. Later, and at time of his arrest, which was at approximately 3:00 A.M., Detectives Sumner about 8:00 A.M., Detectives Sumner and Mangels, of the Hutchinson Police Department detective staff, came to the station to question him; that he was sick from the effects of alcohol but sober at the time. The detectives questioned him about the burglary and asked him about other burglaries that had occurred in and around Hutchinson. He wouldn't give them any information about anything. They asked him to sign a statement and to 'cop out' to other burglaries for several hours. He then wrote a statement in his own handwriting and signed the same in the presence of Detective Sumner. The defendant testified that he requested counsel and was told that he could make a phone call after the statement was signed.

'On Monday morning he called a local attorney, Mr. Bill R. Cole, Hutchinson, Kansas, and Mr. Cole asked him for a sum of money, that he did not have, for representation. He then called DeAnn DeHart, his girl friend. Detective Sumner told him 'there will be time for a lawyer later.' He was then transferred to the Reno County Jail and counsel was appointed for him either that day or the next; that Detective Sumner told him 'what you say might be used against you, but let's get this statement signed'; that Detective Sumner did not mention the penalty for the crime he was charged with or the habitual criminal act; that he, the petitioner, had no knowledge of the habitual criminal act before entering his plea of guilty; that Detective Sumner told him there was the possibility of a parole; that he knew that a conviction for burglary carried a penalty of 5 to 10 years, and that he would be charged with second degree burglary; that he would not have plead guilty if he had known about the habitual criminal act. Defendant admits he plead guilty to a prior charge of burglary, second degree; that he did 15 months in the Kansas State Industrial Reformatory on that offense and did 13 months on a 2-year parole and was released from parole. Defendant does not deny this prior conviction. * * * Detectives Mangels and Sumner of the Hutchinson Police Department talked to the defendant on Sunday. They told him he had only one charge against him and there was, in fact, only one charge filed against him. They made no threats, and informed him that any statement he made would be used against him. He cannot remember whether or not he was advised of his right to counsel. The defendant is shown and identifies his statement, dated April 26, 1964, at 8:50 A.M which statement shows on its face that the defendant was advised in writing of his right to counsel.

'The defendant was taken before Judge Bryan Woodson of the City Court, Hutchinson, Kansas, on April 28th, and on April 30, 1964, he waived preliminary hearing but does not recall whether or not he had counsel * * * no mention was made of the habitual criminal act * * * Mr. Teed told him, prior to entering a plea of guilty, that they might try to give him twice as much time, but he would have to hope for the best.'

Another witness called by appellant testified that she was his girl friend and that he called her the day after his arrest and told her where her car was and that he was charged with burglary; that she witnessed the signature of appellant to a consent to let the officers search his apartment; that appellant willingly signed such consent. Mr. Teed, a member of the Reno County Bar, testified on behalf of the appellant that he was appointed to represent appellant on April 29, 1964, and that although he did not discuss the habitual criminal act with the county attorney, he did advise appellant that by reason of the fact he had had previous convictions the habitual criminal act could probably be invoked but he did not know; appellant told him he had been paroled on a charge of burglary in 1957 and that the parole was later revoked and appellant had served a term in the state industrial reformatory.

It was stipulated that appellant was represented by counsel at the time of his waiver of preliminary hearing on April 30, 1964, but that he was not represented by counsel upon his initial appearance on April 28, 1964, before the examining magistrate.

Upon this showing the trial court made findings of fact specifically finding that the burden of proof had not been sustained by appellant and that no constitutional rights had been violated and it denied the relief sought.

On the day following this hearing, it appears that the trial court was apprised in some manner that the appellant desired to make application for a rehearing and appellant was brought before the trial court again and asked to state his reasons for rehearing at which time the following occurred:

'THE DEFENDANT: I haven't had a chance to discuss it with Mr. Hess, so actually I was wanting to discuss it with him before I went into it any further, but I haven't had any chance to...