Henderson v. State
| Decision Date | 08 April 1967 |
| Docket Number | No. 44738,44738 |
| Citation | 426 P.2d 92,198 Kan. 655 |
| Parties | Douglas HENDERSON, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a proceeding attacking a judgment and sentence under the provisions of K.S.A. 60-1507 the record is examined and it is held, no substantial issue of law or fact is raised which could not be found from the record to be without merit and the trial court properly disposed of the questions without a hearing.
E. Dexter Galloway, Hutchinson, argued the cause and was on the briefs for appellant.
Richard J. Rome, County Atty., argued the cause, and Raymond F. Berkley and Matthew J. Dowd, Asst. County Attys., were with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from an order denying relief from a judgment and sentence challenged under the provisions of K.S.A. 60-1507.
The facts will largely consist of a chronological statement of petitioner's numerous felonies and sentences in connection therewith.
On November 23, 1959, petitioner was sentenced on a plea of guilty to the Kansas State Industrial Reformatory at Hutchinson for a term as provided by law on separate counts of burglary in the 2nd degree and of larceny. The sentences were to run concurrently.
On the same day he was similarly sentenced on two additional counts for burglary in the 2nd degree and larceny. These sentences were to run concurrently but they were to run consecutively to the sentences first imposed.
It appears that petitioner was granted a bench parole on the above matters but that the parole was revoked on February 1, 1960. On the same day the petitioner pled guilty to three counts of malicious destruction of property. He was again sentenced to the State Industrial Reformatory on each of the three counts, the sentences to run concurrently.
The petitioner made application for commutation of sentence and the Governor did on November 3, 1961, commute all of the sentences by reducing them to a single term of 10 to 20 years, which petitioner continued to serve at the reformatory.
On June 29, 1962, the petitioner appeared before the district court of Reno County, Kansas, with his court appointed attorney, and entered a plea of guilty to a charge of escaping from the State Industrial Reformatory contrary to the provisions of K.S.A. 21-734. He was again sentenced to the State Industrial Reformatory for a period of three years to commence at the expiration of his commuted term.
On May 10, 1966, the petitioner filed proceedings under the provisions of K.S.A. 60-1507 challenging the validity of the judgment and sentence for escape. The trial court found that no issues of fact appeared which required an evidentiary hearing and denied relief.
Petitioner has appealed.
The appellant first contends that the court erred in sentencing him to the State Industrial Reformatory rather than to the State Penitentiary as required by K.S.A. 76-2306 because of a previous conviction for a felony at the time the sentence for escape was imposed. (State v. Crow, 196 Kan. 663, 414 P.2d 54.)
It now appears that the appellant, on motion of the state, was ordered returned to the Reno County District Court for the correction of the sentence and the sentence was corrected to imprisonment in the State Penitentiary. Any basis that the appellant might have had for objection to the sentence has now been corrected and no issue remains on this ground.
The appellant next contends that he had numerous felony convictions when he escaped from the State Industrial Reformatory and that he was therefore erroneously confined in the reformatory and should have been in the State Penitentiary. He reasons that since he was not validly confined he had the right to leave and could not be guilty of escape.
We do not propose to labor the question of the effect of the numerous felony sentences received in a single day. Neither shall we labor the question of the effect of the Governor's commutation by which all of the sentences were reduced to one for 10 to 20 years in the State Industrial Reformatory. It will suffice to say that the appellant was in the custody of the state on numerous valid felony convictions which he does not challenge.
An escape may be justifiable where the arresting officer acted without authority rendering the arrest illegal. (State v. Beebe, 13 Kan. 589; State v. King, 71 Kan. 287, 80 P. 606.) However, where the prisoner is properly in custody and serving a sentence under color of law, he cannot, on objection to his sentence, take matters into his own hands by way of...
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