James v. State, 47995
| Decision Date | 23 July 1976 |
| Docket Number | No. 47995,47995 |
| Citation | 553 P.2d 345,220 Kan. 284 |
| Parties | Bob JAMES, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
This is an appeal by Bob James (petitioner-appellant) from the trial court's denial of an evidentiary hearing pursuant to K.S.A. 60-1507 following sentencing and imprisonment after a plea of guilty was entered to a charge of indecent liberties with a child under fifteen. (K.S.A. 38-711 (Corrick).) The sentence was increased to a term of fifteen years to life under the habitual criminal act, K.S.A. 21-107a, now repealed but controlling in the present case.
In his motion the petitioner presents two grounds for post-conviction relief: (1) That two of the three prior convictions which the trial court used in imposing the habitual criminal sentence were constitutionally faulty in that they were obtained without the assistance of counsel; and (2) that the record of the proceedings upon arraignment and acceptance of his plea of guilty does not meet constitutional standards.
The trial court did not appoint counsel and summarily denied an evidentiary hearing. The petitioner has appealed. While the petitioner asked for an evidentiary hearing he does not suggest what, if any, evidence or witnesses might support his claims. On this state of the record the sole question for determination is the sufficiency of the record in question.
On the first point, the three prior convictions presented to the court to invoke the habitual criminal act were: (a) an Oregon conviction in 1950 for contributing to the delinquency of a nine-year-old female; (b) an Oklahoma conviction in 1963 for burglary; and (c) a Washington conviction in 1968 for taking indecent liberties with a six-year-old female.
We have no difficulty in finding that the burglary conviction in Oklahoma could not be used to enhance the criminal sentence because the record is silent as to the defendant's representation by counsel, the recital being only that the defendant was personally present. (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.) As to the Washington conviction, the record clearly recited representation by counsel and the legality of the conviction is not questioned.
That leaves only the 1950 Oregon conviction subject to our scrutiny in the light of the United States Supreme Court decisions cited above, and our own precedents. If the record of the Oregon conviction is valid, then the sentence by the Kansas court of fifteen years to life is valid at it is supported by two prior felony convictions as required by K.S.A. 21-107a. If the record of the Oregon conviction is constitutionally insufficient, then there would reman only one valid prior conviction to support the habitual criminal treatment and the petitioner would have to be resentenced for a shorter term.
The Oregon conviction record does not show representation by counsel, but it does show a waiver of such representation which is sufficient to meet due process standards. The record recites the petitioner waived preliminary hearing and was bound over 'for action by the grand jury.' He thereafter expressed a desire 'to waive action by the grand jury and permit the district attorney to file an information upon the charge and then to have the matter heard and disposed of without further delay.' The record of the petitioner's appearance in the Oregon District Court shows the following:
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