Johnson v. State of Kansas, 6463.
| Decision Date | 01 December 1960 |
| Docket Number | No. 6463.,6463. |
| Citation | 284 F.2d 344 |
| Parties | James H. JOHNSON, Appellant, v. STATE OF KANSAS and Tracy A. Hand, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William E. Shade, Denver, Colo., for appellant.
Charles N. Henson, Jr., Asst. Atty. Gen. (John Anderson, Jr., Atty. Gen., on the brief), for appellees.
Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
This is a habeas corpus proceeding in which the petitioner seeks release from the Kansas State Penitentiary where he is serving a 30-year sentence as an habitual criminal. The petition alleged that the petitioner was denied due process of law when, after having been convicted of the crime of grand larceny, he was brought before the court and sentenced as an habitual criminal without pre-trial notice that the provisions of the Kansas habitual criminal statute1 would be invoked, and without a judicial hearing to determine whether he was subject to the provisions of the statute.
The validity of the statute has been upheld in numerous decisions, and the Kansas Supreme Court has outlined the procedure to be followed when its provisions are invoked. Browning v. Hand, 184 Kan. 365, 336 P.2d 409, certiorari denied 361 U.S. 926, 80 S.Ct. 295, 4 L.Ed.2d 240; State v. Messmore, 175 Kan. 354, 264 P.2d 911; Scott v. Hudspeth, 171 Kan. 320, 232 P.2d 464. In State v. Woodman, 127 Kan. 166, 272 P. 132, 134, it was stated that the statute does not create a new offense but "* * * merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time." In Levell v. Simpson, 142 Kan. 892, 52 P.2d 372, appeal dismissed 297 U.S. 695, 56 S.Ct. 503, 80 L.Ed. 986, rehearing denied 297 U.S. 728, 56 S.Ct. 592, 80 L.Ed. 1011, the court approved the procedure of determining in a subsequent hearing the question of whether a person convicted of a felony is an habitual criminal. In the Woodman and Levell cases it was recognized that the determination of the status of a defendant as an habitual criminal is a judicial procedure and that the defendant is entitled to notice thereof and an opportunity to be heard.2
The appropriateness and validity of such punishment have long been recognized, and the theory is not repugnant to the Federal Constitution. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; 25 Am.Jur. Habitual Criminals, § 3, et seq. Most of the states have enacted statutes which provide a more severe punishment for those who are prior offenders. The penalties which may be invoked under these statutes are extremely severe, and those so charged are entitled to the protection which the Constitution affords when the issue is to be determined. The fundamental requisites of due process, when the statute is to be invoked, are reasonable notice and an opportunity for a full and complete hearing, with the right to the aid of competent counsel. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.
Contrary to the allegations of the petitioner, the record shows that on September 22, 1955, he was notified in writing that evidence would be offered and the court requested to sentence him as an habitual criminal; that by agreement of the parties the hearing was had October 1, 1955; that the petitioner was present in open court with his counsel when the prosecution...
To continue reading
Request your trial
-
State v. Freitas
...notice and afforded the opportunity to be heard. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Johnson v. Kansas, 284 F.2d 344 (10th Cir. 1960); Jackson v. State, 204 Kan. 841, 466 P.2d 305 (1970). Cf. HRS § 706-604; Freitas v. Gomes, 52 Haw. 145, 472 P.2d 494 (1970). Th......
-
Oyler v. Boles Crabtree v. Boles, s. 56 and 57
...process—notice given far enough in advance to allow for an opportunity to defend. A 9-day notice was deemed adequate in Johnson v. Kansas, 10 Cir., 284 F.2d 344, 345, the court 'The fundamental requisites of due process, when the statute is to be invoked, are reasonable notice and an opport......
-
Wright v. Craven
...recidivism statutes. Chandler v. Fretag, cit. supra; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Johnson v. Kansas, 284 F.2d 344 (10 Cir. 1960); Tucker v. Craven, 421 F.2d 139 (9 Cir. 1970); see also People v. Newton, 8 Cal.App.3d 359, 87 Cal.Rptr. 394 An admission of ......
-
Byers v. Crouse
...Kan. 166, 272 P. 132; Browning v. Hand, 10 Cir., 284 F.2d 346, cert. denied, 369 U.S. 821, 82 S.Ct. 833, 7 L.Ed.2d 786; Johnson v. State of Kansas, 10 Cir., 284 F.2d 344. Moreover, we think this case is controlled by Browning v. Hand, supra, 284 F.2d at 347, where it was said: "* * * Assumi......