Johnson v. State, 50500

• Decision Date: 24 February 1979
• Docket Number: No. 50500,50500
• Citation: 225 Kan. 458,590 P.2d 1082
• Parties: Wayne E. JOHNSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 1082

590 P.2d 1082

225 Kan. 458

Wayne E. JOHNSON, Appellant, v. STATE of Kansas, Appellee.

No. 50500.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. The constitutional right to counsel is not a matter of form, but one of substance; it is a right which contemplates the guidance of a responsible, capable lawyer devoted to his client's interests, and possessed of opportunity to become acquainted with both the law and the facts pertaining to the case against the accused.

2. An accused in a criminal case is not denied his constitutional right to the effective assistance of counsel as a matter of law solely because his appointed counsel was in a suspended status for nonpayment of the attorney registration fee during the period of representation.

3. The adequacy and effectiveness of an attorney's service on behalf of an accused must be gauged by the totality of his representation.

Thomas E. Osborn, Kansas City, argued the cause and was on the brief for the appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.

PRAGER, Justice:

This is a proceeding brought pursuant to K.S.A. 60-1507 to set aside a conviction of the petitioner, Wayne E. Johnson, for the crime of first-degree murder (K.S.A. 21-3401). The basis for the petition is that the petitioner was denied his constitutional right to the effective assistance of counsel. Following his conviction in February of 1976, Johnson took a direct appeal to this court and his conviction was affirmed in State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977). The direct appeal did not raise the issue of inadequacy of counsel.

At the outset, it should be pointed out that the sole basis for 60-1507 relief is a claim of Johnson that he was denied the effective assistance of counsel because, at the time his counsel, Samuel J. Wilson, was appointed to represent him and during the period of the representation, Wilson had been suspended from the practice of law for failure to pay the registration fee required by the rules of the Kansas Supreme Court. Johnson does not claim in this proceeding that his counsel, Wilson, failed to provide him with proper representation in the case. The facts in the case are undisputed and are as follows: Samuel J. Wilson was admitted to the Kansas bar in June of 1967 after passing the Kansas bar examination. Subsequent to that time he practiced law in Wyandotte Company. Effective July 1, 1973, attorneys admitted to practice in the state of Kansas were required to register annually with the Clerk of the Supreme Court and pay a registration fee, Rule No. 201(a) (214 Kan. liii), now Rule No. 208(a) (225 Kan. xxiii (Adv. Sheet No. 1)). Under subsection (d) of the rule, any attorney who fails to pay the registration fee by August 1 of each year may be suspended from the practice of law in the state of Kansas. Any attorney who has been suspended for the nonpayment of the registration fee may be reinstated upon application to the Supreme Court and the payment of all delinquent registration fees and an additional late payment fee, as provided by subsection (f) of the rule. Under subsection (e), the Clerk of the Supreme Court is required to mail a notice to any attorney who has failed to comply with subsection (a) informing him that the right to practice law will be summarily suspended within thirty days of the mailing, if his registration fee is not paid within that time. The Clerk is required to certify to the Supreme Court the names of attorneys who fail to register and pay the fees within that time. The Court then issues an order suspending the attorney from the practice of law in the state of Kansas. Under Rule No. 218 (225 Kan. xxviii (Adv. Sheet No. 1)), an attorney who has been disbarred or suspended from the practice of law is required to notify each client of the attorney's inability to undertake further representation of the client after the effective date of the order and is also required to notify such client to obtain other counsel in each matter. In addition, the suspended attorney is required to notify the appropriate court or administrative body, along with opposing counsel, of his inability to participate in any further proceedings and shall file an appropriate motion to withdraw as counsel of record. Dovetailing with the obligation of the attorney to notify all parties of his suspension or disbarment is the requirement that each member of the judiciary prohibit any suspended or disbarred attorney from appearing or practicing in court. Rule No. 208(d).

The record shows that Samuel J. Wilson paid no annual attorney's registration fee after 1973 and was suspended from the practice of law on October 14, 1974. Thereafter, the Clerk of the Supreme Court mailed a letter dated January 9, 1975, to the Clerk of the District Court of Wyandotte County notifying him that Samuel J. Wilson, along with others, had been suspended for failure to pay the yearly registration fee. The Clerk of the District Court of Wyandotte County testified that he never received such notice, nor did any judge receive such notice. The attorney for the petitioner stipulated that the judges of Wyandotte County did not knowingly appoint an attorney who had been suspended for nonpayment of the registration fee.

The homicide in this case took place on August 22, 1975. On August 27, 1975, a complaint was filed charging Johnson with first-degree murder. On September 29, 1975, a preliminary hearing was held at which Samuel J. Wilson appeared as the Retained attorney representing Johnson. Johnson was bound over for trial. On September 29, 1975, an information was filed in the district court charging Johnson with first-degree murder. On October 17, 1975, Samuel J. Wilson appeared at the arraignment and entered a plea of not guilty for Johnson. Up to this point, Wilson was acting as the Retained attorney representing Johnson.

On November 4, 1975, Samuel J. Wilson was appointed as attorney to represent Johnson at his trial for murder. The case proceeded to trial and on February 10, 1976, Johnson was found guilty of murder in the first degree by a jury. Samuel J. Wilson filed a motion for a new trial on behalf of Johnson, which was argued and overruled by Judge Harry G. Miller, Jr., on February 24, 1976. Thereafter, on March 1, 1976, Samuel J. Wilson withdrew as appointed counsel and Mr. Thomas E. Osborn of the Wyandotte County bar was appointed as counsel for Johnson to perfect an appeal to the Supreme Court. In the direct appeal the conviction of murder was affirmed on June 11, 1977. It is important to note that the representation of Johnson by Samuel J. Wilson was terminated on March 1, 1976.

On March 1, 1977, a State Board of Law Examiners panel met to consider five complaints against Samuel J. Wilson involving alleged misconduct in civil litigation. On March 16, 1977, other complaints were filed and subsequent hearings were held. By order of the court dated March 31, 1978, Samuel J. Wilson was disbarred. In re Wilson, 224 Kan. 1, 576 P.2d 1088 (1978). Following the publication of the order of disbarment, the matter of the disbarment of Samuel J. Wilson came to the attention of Thomas E. Osborn, who proceeded on behalf of Wayne E. Johnson to file a petition under 60-1507 which is the basis for the case now before us.

The issue to be determined simply stated is as follows: Was Johnson denied his constitutional right to counsel as a matter of law where his appointed counsel, Wilson, was in a suspended status for nonpayment of the attorney registration fee during the period of representation? It is the position of Johnson that the effective assistance of counsel can only be provided by an attorney duly licensed by the Supreme Court who, on the date of appointment and service, is authorized to practice law, who acts honestly and faithfully on behalf of his client, and who is in good standing and a reputable member of the bar.

The state in its brief contends that Johnson was not denied his constitutional right to counsel since his appointed counsel was wholly effective and adequate as gauged by the totality of the representation provided by Wilson in the case. The state points out that there were no complaints filed against Wilson nor disciplinary proceedings pending against him at the time he failed to pay his annual registration fee in 1974. The state also points out that the annual registration fee has nothing to do with the qualifications of an attorney. Pursuant to the rules of the Supreme Court, the annual registration fee was established to pay the expenses of disciplinary proceedings before the State Board of Law Examiners and the salary and expenses of the disciplinary administrator. The state argues that an attorney who has been suspended for nonpayment of the registration fee still holds his office as an attorney; he does not lose his qualifications as an attorney and his ability to provide an adequate and effective representation is not hampered in any way by the nonpayment of the registration fee.

In defining the level of competence necessary to insure that an accused person receives his proper defense, this court has described the necessary qualifications of counsel in a variety of terms. We have stated that, while the guarantee of effective counsel does not guarantee the most capable, learned, experienced, or brilliant counsel, it does require that the counsel be a competent and reputable member of the bar (State v. Wright, 203 Kan. 54, 57, 453 P.2d 1 (1969); McGee v. Crouse, 190 Kan. 615, 618, 376 P.2d 792 (1962); Hicks v. Hand, 189 Kan. 415, 417, 369 P.2d 250 (1962)), as well as counsel who is responsible, capable, conscientious, and competent (Ray v. State, 202 Kan. 144, Syl. PP 2, 3, 446 P.2d 762 (1968)). We have also declared that the representation by counsel should be honest, genuine, and faithful. State v. Brown, 204 Kan. 430, 432, 464 P.2d 161 (...