Jackson v. State, 45742

• Decision Date: 07 March 1970
• Docket Number: No. 45742,45742
• Citation: 204 Kan. 823,465 P.2d 927
• Parties: Lonnie Lee JACKSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 927

465 P.2d 927

204 Kan. 823

Lonnie Lee JACKSON, Appellant, v. STATE of Kansas, Appellee.

No. 45742.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. In an action brought by an inmate of the state penitentiary to vacate the sentence imposed upon him pursuant to K.S.A. 60-1507, the record is examined on appeal and it is held: The trial court did not err in denying the petitioner's motion for a continuance of the 60-1507 hearing, and in finding that the petitioner failed to sustain the burden of proving that he was entitled to relief.

2. Supreme Court Rule No. 121(c)(3) specifically prohibits the use of a proceeding instituted pursuant to K.S.A. 60-1507 as a substitute for direct appeal involving trial errors. The rule requires that trial errors be corrected on direct appeal; but in the event no appeal is taken, trial errors affecting constitutional rights may be raised in this type proceeding only if there are exceptional circumstances excusing the failure to appeal.

3. The petitioner in a proceeding conducted pursuant to K.S.A. 60-1507 is not entitled to a copy of the trial transcript in the criminal proceeding pursuant to which he was sentenced, where no appeal had been perfected from the judgment and sentence imposed in the criminal action. K.S.A.1968 Supp. 62-1304 relates only to appeals in criminal actions and not to hearings conducted pursuant to K.S.A. 60-1507. (K.S.A.1968 Supp. 62-1304 was repealed by L.1969, ch. 291, § 16; and see K.S.A.1969 Supp. 62-3106.)

4. K.S.A. 60-240(c) provides that the granting of continuances by the trial court based on the absence of a material witness shall in all cases be discretionary.

5. K.S.A. 60-240(c) also states that the trial court need not entertain any motion for a continuance based upon the absence of a material witness, unless supported by an affidavit which shall state the facts enumerated in the statute.

6. Double jeopardy is an affirmative defense that a defendant in a criminal action waives by failing to raise it in a timely manner. Where the defendant in a criminal action fails to perfect an appeal from the judgment of his conviction and sentence, he cannot for the first time raise the issue of double jeopardy in a proceeding instituted pursuant to K.S.A. 60-1507.

Donald W. Vasos, Kansas City, for appellant.

Frank D. Menghini, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Nick Tomasic, Chief Deputy County Atty., with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal in a K.S.A. 60-1507 action by the petitioner from the refusal of the trial court to grant relief.

Most points asserted by the petitioner stem from his failure to have a transcript of the trial in the criminal proceedings available.

On the 29th day of April, 1959, the petitioner was charged in an information with statutory rape alleged to have been committed upon one Gloria Walker, a female child of the age of nine years, and with the crime of burglary and grand larceny committed in connection therewith. All of such offenses are alleged to have been committed on the 1st day of February, 1959.

In due course the jury found the petitioner guilty of an attempt to commit statutory rape embraced in the first count of the information, and guilty of grand larceny as charged in the second count. A motion for a new trial was filed and upon hearing overruled, following which the petitioner was sentenced under the habitual criminal act to a term of not less than three years nor more than thirty-one years for the crime of attempting to commit statutory rape, and a term of not less than three years nor more than fifteen years for the crime of grand larceny, said sentences to run consecutively.

No appeal was ever taken to the Supreme Court of Kansas from the judgment of conviction or the imposition of sentence.

It was not until the 17th day of August, 1968, nearly ten years after his conviction, that the petitioner filed his motion to set aside the sentences pursuant to K.S.A. 60-1507 in the district court of Wyandotte County, Kansas. The trial court appointed counsel and ordered an evidentiary hearing which was set for October 8, 1968. The petitioner alleged in his motion that:

'1. The State of Kansas had unconstitutionally suppressed the evidence and testimony of one Dr. A. P. Taliaferro, M.D.

'2. The State of Kansas had unconstitutionally secured his conviction by the use of perjured testimony.

'3. The appellant had twice been put in jeopardy for the same offense.

'4. The evidence did not support a conviction of larceny of an item or items of the value of $50.00 or more.'

After hearing the evidence the sentencing court denied the petitioner's motion to set aside the sentence, and appeal has been duly perfected.

The first point asserted by the petitioner is that the trial court erred in refusing to grant his motion for continuance of the 60-1507 hearing, when it became apparent he was unable to obtain a transcript of the original trial in the Wyandotte County district court.

When the petitioner filed his handwritten notice to vacate the sentence, he also filed and made a request for a transcript of the original proceedings, but no transcript of the trial proceedings was prepared or available at the time of the evidentiary hearing conducted by the trial court. The record discloses his petition to set aside the sentence was filed August 17, 1968, and the petitioner was notified by the trial court in a letter on September 5, 1968, that counsel (naming him) was appointed as his attorney to represent him at the hearing which would be held on October 8, 1968. The trial court in its letter advised the petitioner to contact his attorney immediately and give him 'names of witnesses that you want to call, their addresses and telephone numbers, if available, and any other relevant matters which you feel your attorney needs in presenting this case.'

The record discloses the court reporter at the original trial passed away prior to the filing of the petitioner's 1507 motion, and the court reporter's notes had not been transcribed. Furthermore, no one was found who could read the Pittman shorthand notes taken by the deceased reporter.

The trial court found the petitioner had been in correspondence with the court prior to the filing of his petition in the 1507 proceeding and knew there was no transcript available of the original trial in the criminal action, and consequently no useful purpose would be served by granting a continuance of his hearing until a transcript of the criminal trial could be obtained. The trial court thereupon concluded the denial of the petitioner's request for a continuance was not prejudicial.

Among the statements made by the petitioner's counsel in arguing the motion for a continuance to the trial court was the following:

'* * * principally and most importantly we need a record in order to properly set out any constitutional infringements that may have occurred at Mr. Lonnie Jackson's trial. * * *' (Emphasis added.)

The record discloses petitioner's counsel at the 1507 proceeding was aware of the fact that no record of the criminal proceedings was available and the reasons therefor. This is not a case where the trial court refused to grant the petitioner's request for a transcript.

The court is therefore confronted with the proposition that the petitioner does not allege specific errors were made in the course of the criminal proceeding, but only that infringements of his constitutional rights may have occurred. At no point had the petitioner previously asserted this issue because no direct appeal was taken in the criminal proceeding. In Minor v. State, 199 Kan. 189, 428 P.2d 760, the court said:

'Rule No. 121(c)(4) (194 Kan. XXVII) specifically prohibits the use of a 60-1507 proceeding as a substitute for direct appeal involving trial errors, * * *. The rule requires that trial errors be corrected on direct appeal; but in the event no appeal is taken, trial errors affecting constitutional rights may be raised in this type proceeding only if there are exceptional circumstances excusing the failure to appeal.' (p. 190, 428 P.2d p. 761.)

The foregoing rule now appears in the rules of the Supreme Court as Rule No. 121(c)(3). (201 Kan. XXXIII.)

Here no effort whatever has been made by the petitioner to show that exceptional circumstances existed excusing the petitioner's failure to appeal in the criminal proceeding. (See Barnes v. State, 204 Kan. 344, 461 P.2d 782.)

Even assuming a transcript of the criminal proceedings were available, there would be no duty on the court to furnish the petitioner a copy of it. The law is quite clear that K.S.A.1968 Supp. 62-1304 relates only to appeals and not to 60-1507 hearings. In State v. Chance, 190 Kan. 661, 662, 378 P.2d 11, it was held the district court was not required to order the county to furnish the defendant a transcript of the proceeding of his trial, because the defendant did not perfect his direct appeal, citing State v. Shores, 187 Kan. 492, 357 P.2d 798.

In Stiles v. State, 201 Kan. 387, 389, 440 P.2d 592, the petitioner in a 60-1507 hearing was denied copies of the trial transcript where no appeal had been perfected. It was said the district court was not required to order the county to furnish the defendant a transcript of his trial proceedings absent an appeal.

It is to be noted K.S.A. 62-1304 was amended by Laws of 1968, ch. 130, § 1, and repealed by Laws of 1969, ch. 291, § 16. In its place the 'Aid to Indigent Defendants' act was enacted by Laws of 1969, ch. 291. (See K.S.A.1969 Supp. 62-3101 et seq., and in particular K.S.A.1969 Supp. 62-3106; see, also, State v. Jefferson, 204 Kan. 50, 460 P.2d 610.)

The petitioner also contends the trial court erred in refusing to grant a continuance because three witnesses subpoenaed by the petitioner to testify at the 60-1507 hearing were not present. The sheriff returned the subpoenas stating he had...