Lewis v. Hand, 42335
| Decision Date | 10 June 1961 |
| Docket Number | No. 42335,42335 |
| Citation | 188 Kan. 426,362 P.2d 639 |
| Parties | Lee LEWIS, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record examined in an appeal in a habeas corpus proceeding wherein petitioner by his unsupported and uncorroborated statements claims that an attorney was not properly appointed for him by the trial court in a criminal prosecution under G.S.1949, 21-523, even though the attorney had previously been appointed and had represented him throughout the preliminary hearing, and it is held the trial court did not err in denying the writ.
Lee Lewis, pro se.
Louis D. James, Asst. Atty. Gen., argued the cause, and William M. Ferguson, Atty. Gen., and J. Richard Foth, Asst. Atty. Gen., were with him on the briefs for appellee.
This is an appeal from the judgment of the trial court denying the issuance of a writ of habeas corpus to petitioner and remanding him to the custody of respondent.
Petitioner was originally charged in an information with the commission of the crime of second-degree burglary and grand larceny and brought before the district court of Reno county for arraignment. The record shows that on March 9, 1959, at a preliminary hearing in the city court of Hutchinson petitioner had appeared and attorney John K. Leighnor had represented him wherein the testimony of witnesses was heard. A transcript of the record in the preliminary hearing was filed on March 10, 1959, in the office of the district court clerk of Reno county. At the arraignment the petitioner told the court he was represented by Jack Leighnor even though Mr. Weinlood's name appeared in the record as his attorney. Petitioner stated that Weinlood no longer represented him but Mr. Leighnor did. It was later explained by Mr. Leighnor that he had previously been appointed by the court. Upon inquiry of the trial court as to the date of his appointment, Leighnor explained that he did not recall it but when he returned to his office he would check the record and call the court and supply the information. Upon request of petitioner and his appointed attorney a jury trial was granted and hearing set for April 30, 1959.
Petitioner was found guilty by the jury and upon its verdict, the posttrial evidence, and the showing of one prior felony conviction, petitioner was sentenced for a term of not less than ten nor more than twenty years for second-degree burglary, and no more than ten years for grand larceny, the sentences to run concurrently. G.S.1949, 21-523; 21-524; 21-107a.
Both petitioner and respondent have set out identical records. The only complaint that petitioner makes in his attack on the judgment, sentencing and commitment of the Reno county district court is that G.S.1949, 62-1304 was not fully complied with in every respect because petitioner appeared without counsel of his own choosing and the court did not inform him of his right to be represented by counsel of his own choosing; that the court appointed counsel without giving petitioner a chance to consult his own counsel. Petitioner also complains that no transcript was made of the proceedings, as required under G.S.1949, 62-1304.
Petitioner relies on Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, certiorari denied 1960, 362 U.S. 970, 80 S.Ct. 956, 4 L.Ed.2d 901, and other opinions cited therein at page 356 of 185 Kan., at page 230 of 343 P.2d, which calls the court's attention to Tafarella v. Hand, 185 Kan. 613, 347 P.2d 356, certiorari denied 1960, 363 U.S. 807, 80 S.Ct. 1243, 4 L.Ed.2d 1150, where the petitioner had originally been charged jointly with Ramsey in an information. However, reading these opinions shows very quickly that when those petitioners appeared as defendants for arraignment, they were without counsel. In the last attempt of Roy Ramsey (Ramsey v. Hand, 187 Kan. 502, 357 P.2d 810) the previous Ramsey case was fully and...
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Szopenske v. Hand
...that he was without the effective assistance of counsel. The record amply demonstrates otherwise. What was said and held in Lewis v. Hand, 188 Kan. 426, 362 P.2d 639, controls. No further reference to that decision is here made except to say it held that the petition did not authorize the g......