King v. State

• Decision Date: 11 December 1965
• Docket Number: No. 44348,44348
• Citation: King v. State, 195 Kan. 736, 408 P.2d 599 (Kan. 1965)
• Parties: Leland O. KING, Appellant, v. The STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 599

408 P.2d 599

195 Kan. 736

Leland O. KING, Appellant, v. The STATE of Kansas, Appellee.

No. 44348.

Supreme Court of Kansas.

Dec. 11, 1965.

Syllabus by the Court.

A prisoner is not entitled to challenge the validity of a sentence by a motion filed under K.S.A. 60-1507 where, despite an adjudication finding the sentence void, he would still be confined under another sentence.

Donald Hickman, Arkansas City, argued the cause, and was on the brief for appellant.

J. Michael Smith, County Atty., Winfield, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, and Tom Pringle, Deputy County Atty., Arkansas City, were with him on the brief for appellee.

FONTRON, Justice.

This appeal stems from an order overruling a motion filed by the appellant, under K.S.A. 60-1507, to vacate and set aside a sentence previously imposed against him. In this opinion, the appellant will be referred to as petitioner.

The parties have entered into an 'agreed statement on appeal' which, so far as material, shows that the petitioner was charged with stealing a Chevrolet sedan, was arrested on that charge, and was committed to jail; that a preliminary hearing was had at which the petitioner did not have counsel but where both he and his wife testified in his behalf; that petitioner was bound over to district court, where counsel was appointed for him on May 24, 1955; that on September 23, 1955, petitioner was formally arraigned in district court, was placed on trial for the offense charged against him, and was represented throughout the trial by appointed counsel; and that all witnesses requested by the petitioner testified either for the state or the defense.

The agreed statement further shows that upon approval of the verdict by the trial court, the state (appellee herein) gave notice in writing that on September 27, 1955, it would introduce evidence and would request the court to sentence petitioner as an habitual criminal; that the petitioner thereupon conferred with his attorney and announced that he desired to waive such notice and to have sentence pronounced forthwith; that evidence of one previous conviction was thereupon introduced and the court sentenced the petitioner to the Kansas State Penitentiary for not less than fifteen (15) nor more than thirty (30) years; and that on February 27, 1958, the Governor of Kansas commuted the sentence to five (5) to thirty (30) years.

It is further agreed that no motion for a new trial was filed and that the record does not disclose, except as recited above, what advice or consultation, if any, was had between petitioner and court-appointed counsel concerning a motion for new trial, the habitual criminal statutes, or other matters.

Before proceeding to consider the several substantive points raised by petitioner on this appeal, we are obliged to give heed to a matter disclosed when this case was presented on oral argument. Upon inquiry by this court at that time, it was discovered, and was conceded by counsel, that the petitioner is now serving unexpired sentences imposed in another case in addition to the sentence challenged here. This information has posed the question whether this proceeding can be maintained by petitioner at the present time. It is our opinion that this query demands a negative response.

K.S.A. 60-1507(a) provides as follows:

'A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.' (Emphasis supplied.)

To implement K.S.A. 60-1507, as well as for the purpose of establishing the procedures to be followed in invoking its provisions, this court on October 16, 1964, adopted Rule No. 121 set out in 194 Kan. xxvii. Section (c) of the rule provides in relevant part:

'(1) The provisions of section 60-1507 may be invoked only by one in custody claiming the right to be released, (2) a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence * * *.'

The foregoing language is plain and explicit. We believe it requires neither clarification nor interpretation. The express terms of the rule precludes the petitioner from maintaining this action at this time. No matter what our conclusion might be on the merits of the contentions advanced by petitioner in his motion, he would not be released from prison, for he...