Johnson v. State

• Decision Date: 17 July 1969
• Docket Number: No. 45653,45653
• Citation: 203 Kan. 947,457 P.2d 181
• Parties: Dale Ralph JOHNSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 181

457 P.2d 181

203 Kan. 947

Dale Ralph JOHNSON, Appellant, v. STATE of Kansas, Appellee.

No. 45653.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. The adequacy of service rendered by an attorney on behalf of his client must be gauged by the totality of his representation, not by analyzed fragmentary segments thereof in isolation. (Following Call v. State, 195 Kan. 688, 408 P.2d 668, cert. den. 384 U.S. 957, 86 S.Ct. 1581, 16 L.Ed.2d 552.)

2. Effective assistance of counsel cannot be equated with successful assistance of counsel.

3. The record in a proceeding commenced under K.S.A. 60-1507 is examined, and it is held: The findings of the district court at an evidentiary hearing are fully supported by the record, and the district court did not err in denying the appellant the relief sought.

Gaylord Reichart, Burlington, argued the cause and was on the brief, for appellant.

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause and Kent Frizzell, Atty. Gen., was with him, on the brief, for appellee.

FATZER, Justice.

This is an appeal from an order of the Osage district court denying appellant's motion initiated pursuant to K.S.A. 60-1507, to vacate the judgment and sentence imposed by that court.

The district court granted the appellant an evidentiary hearing at which the appellant and the state offered evidence. The district court made comprehensive and detailed findings of fact, and the story of this proceeding is best told by quoting in full those findings:

'1. On July 10, 1965, a warrant issued on a Complaint filed that date, charging the defendant with bank robbery, was returned and on the same day, preliminary examination was waived and the defendant was bound over to the District Court of Osage County, Kansas, for trial.

'On July 15, 1965, in the District Court, the defendant was found indigent and Charles Heizer was appointed as attorney for the defendant.

'2. On October 4, 1965, on motion of the state, an insanity commission was appointed to determine if the defendant was sane and able to comprehend his position and make his defense. The Court appointed Dr. Alfred Paul Bay, Superintendent of the State Hospital at Topeka, Kansas, and Dr. Howard Williams, a member of the staff of such institution, as the commission for such purpose. The commission made report on October 11, 1965, that the defendant was sane and able to comprehend his position and to make his defense.

'3. On October 21, 1965, Motion to Quash was argued, raising among other objections the question of the constitutionality of K.S.A. 21-531. The motion was sustained as to ground 2 alleging indefiniteness and insufficiency as to the description of the property alleged to be stolen and was overruled on all other grounds. The state was granted leave to amend generally.

'4. On November 2, 1965, the defendant was duly arraigned and pled not guilty by reason of insanity. On motion for that purpose, allowance of funds was authorized for defendant to obtain expert witness for psychiatric examination and testimony. The case was assigned for trial on December 6, 1965, at 9:00 a. m.

'5. On November 24, 1965, on motion of the defendant, the case was continued to December 22, 1965, at 9:00 a. m.

'6. On Friday, December 10, 1965, at 5 o'clock, p. m., on finding attorney for defendant had been hospitalized for planned surgery, his withdrawal as appointed attorney was approved and Clyde M. Burns was appointed attorney for defendant and directed to proceed with the discharge of his duties as such. On December 13, 1965, defendants was brought into court, was informed of withdrawal of Charles Heizer as attorney and of appointment of Clyde M. Burns as his attorney. On application and leave granted, defendant withdrew his plea of not guilty by reason of insanity and entered a plea of not guilty.

'On December 22, 1965, trial of the action was commenced and was concluded on December 23, 1965, with verdict of guilty as charged.

On announcement of intention to file a motion for new trial, time for filing was fixed as on or before December 28, 1965, and the same was assigned for hearing on December 29, 1965.

'7. On December 27, 1965, Motion for a New Trial was filed on the grounds:

'1. For newly discovered evidence.

'2. For the reason that the verdict was contrary to the evidence.

'3. The jury received evidence not authorized by the Court.

'On December 28, 1965, the parties stipulated that the hearing of the motion for a new trial could be held on such date. The motion for a new trial was argued and overruled. Judgment was entered and defendant was sentenced for the crime of bank robbery as defined by K.S.A. 21-531 as charged in the Information to be confined in the Kansas State Penitentiary at Lansing, Kansas, at hard labor for not less than ten nor more than fifty years and there was deducted from his sentence 90 days dating from September 30, 1965, for time spent in jail pending the disposition of the case. Defendant was informed that he had a right to appeal to the Kansas Supreme Court from any adverse decision of the Court and that he might have counsel appointed to assist in the appeal. Defendant's Motion to Suspend the Execution of the Sentence and For Probation was overruled.

'8. On April 28, 1966, on affidavit filed, and finding of good faith, Clyde M. Burns was appointed as attorney for the defendant to take an appeal and transcript was ordered at the expense of the county. The Clerk was directed to forthwith notify counsel of his appointment and the official reporter of the order for the transcript. Transcript of the trial was prepared and delivered to defendant's counsel on July 12, 1966.

'9. On May 5, 1966, defendant filed notice of appeal to the Supreme Court with endorsement thereon of service acknowledged and form of proof thereof waived by the County Attorney. The Clerk of the District Court failed and neglected to transmit the notice of appeal to the Clerk of the Supreme Court.

'10. On August 4, 1966, the Court signed written Journal Entry endorsed, submitted by attorney for the defendant and approved by County Attorney and signed by them respectively, granting of Record to file Designation of Contents of Record on Appeal, and on September 6, 1966, signed a similarly submitted and signed order granting 60 days in which to file the same.

'11. On November 23, 1966, the defendant filed what was labeled as 'Motion to Dismiss Appeal' with prayer 'that the motion be sustained' and had attached thereto marked 'Exhibit A', made a part thereof, written statement, signed by the defendant as follows:

"I, Dale Ralph Johnson, do hereby authorize my attorney, Clyde M. Burns, to dismiss my appeal to the Supreme Court of the State of Kansas From may conviction in the District Court of Osage County, Kansas. I have been advised by my said attorney concerning this abandonment of my appeal and am doing this of my own free will and accord.

"Dated at Lansing, Kansas, this 3rd day of November, 1966.

"Dale Ralph Johnson'

'(signed).'

'On presentation the Court entered order in its minutes, 'On motion of defendant, appeal is dismissed.' At the same time, the Court authorized the release to the bank of the exhibit of coins and currency, found in defendant's possession and introduced in evidence.

'12. Pursuant to the provisions of K.S.A. 21-2613, the pistol used by the defendant was, on January 17, 1967, ordered sold by the Court and the same was sold as provided by law.

'13. On December 11, 1967, defendant filed a motion under the procedure provided by K.S.A. 60-1507 and on the same day, the Clerk was directed to issue notice of filing of the same to the County Attorney. The Court appointed Leonard W. McAnarney as attorney for the defendant.

'14. On December 19, 1967, motion was assigned for trial on February 5, 1968, at 9:00 a. m.

'15. On February 5, 1968, the movant, Dale Ralph Johnson, appeared in person and by Leonard W. McAnarney, his attorney, and full hearing was held on the motion with evidence being introduced by both sides.

'16. Under date of January 9, 1966, the defendant, by letter to his attorney, requested him to let the appeal go for now and try and get an appointment with the Governor for a pardon or to commute sentence. The defendant's mother also made some inquiry about clemency, had consulted an attorney about such matter and had informed the defendant and defendant's attorney of what she had been doing.

'The defendant had taken inconsistent positions and on some occasions, the defendant informed his attorney that he wanted an appeal and on other occasions, he said not to. The defendant wanted out of the penitentiary the quickest way possible and would change his mind from time to time as the best way to do it. His attorney informed the defendant that he felt there were no grounds for appeal.

'At the request of defendant's mother, his attorney went to see the defendant at the penitentiary on November 23, 1967. (NOTE: This date should be November 3, 1966, as recited in Finding 11). He then informed the defendant that defendant's mother had consulted an attorney about asking for clemency and was told by defendant that he kenw about this. Defendant's attorney informed the defendant that he had been advised by the pardon attorney that the Governor would not entertain an application for clemencey because an appeal was pending. The defendant informed his attorney that he wanted to abandon his appeal and try for clemency. At that time at the request of his attorney, defendant signed the instrument identified as Exhibit A. This was the free and voluntary act of the defendant and the statement was knowingly and understandably made.

'17. A condensed summary of the state's case disclosed the following: the sheriff and undersheriff were in Overbrook the day the robbery occurred, became suspicious of a fast moving car dodging in and out of vehicles in a parade then in progress. As they started to...