Loftis v. Amrine
| Decision Date | 05 October 1940 |
| Docket Number | 34851. |
| Parties | LOFTIS v. AMRINE, Warden. |
| Court | Kansas Supreme Court |
Rehearing Denied Nov. 16, 1940.
Syllabus by the Court.
A hearing on an application for writ of habeas corpus is not a "prosecution of an accused" within meaning of constitutional provision giving, to one charged with a crime right to be represented by counsel, and such constitutional provision does not require that in hearing on such application petitioner be represented by counsel. Const Bill of Rights, § 10; Gen.St.1935, 62-1304.
Where journal entry recited that defendant pleaded guilty to charge of forgery in second degree and was sentenced to serve in penitentiary until discharged by law, and sheriff was ordered to deliver defendant to penitentiary to be confined therein for a term from two to twenty years, or until discharged by law, journal entry was ambiguous, and, in view of statute providing that punishment for forgery in second degree shall be imprisonment for not more than ten years, journal entry would be construed as sentencing defendant for a term of not less than, nor more than ten years. Gen.St.1935, 21-608 21-631.
Where journal entry recited that a defendant pleaded guilty to charge of forgery in second degree and was sentenced to serve in penitentiary until discharged by law, and sheriff was ordered to deliver defendant to penitentiary to be confined therein for a term of two to twenty years, or until discharged according to law, sentence construed as for a term of not less than, nor more than ten years, was not void, and defendant was not entitled to an order of release on writ of habeas corpus before serving his sentence. Gen.St.1935 21-608, 21-631.
Application by a prisoner for a writ of habeas corpus constituted a "collateral attack" on the judgment of conviction.
A defendant "waived" his right to counsel by pleading guilty.
In an application for a writ of habeas corpus, the record is examined, and the sentence imposed upon petitioner is construed so that the petitioner is ordered held in confinement for a term of years, as provided in the pertinent statute; it is further held that the petitioner waived his right to counsel by pleading guilty; that the sentence was not void and he is not entitled to be released.
Appeal from District Court, Leavenworth County; James H. Wendorff, Judge.
Habeas corpus proceeding by Harry E. Loftis against Milton F. Amrine, Warden of the Kansas State Penitentiary. From an adverse judgment, petitioner appeals.
Judgment affirmed in so far as proceedings are treated as an original application for writ of habeas corpus; the writ is denied.
Harry E. Loftis, of Leavenworth, pro se.
Jay S. Parker, Atty. Gen., and E. V. Bruce, Asst. Atty. Gen., for appellee.
In this case the petitioner filed an application for a writ of habeas corpus in the district court of Leavenworth county. In his application he asked that the warden of the prison at Lansing be directed to set him at liberty. The judge of the district court denied this application. It is not clear as to just what steps the petitioner then took. He filed some documents with the clerk of the court, from which it might be deduced that he attempted to appeal from the judgment of the district court. On the other hand, he makes some statements in his brief, by which it appears that he regards the proceeding in this court as an original application in habeas corpus in which this court has original jurisdiction. There are certain formal requisites with which petitioner has not complied, which afford a sufficient ground for dismissing the present proceedings forthwith. However, this court has noted the fact that the petitioner is confined in the penitentiary, is apparently without funds, and although not a lawyer is acting as his own attorney, and we have concluded to pass over these formal defects and consider the case on the merits of the various points raised by petitioner.
We shall begin the consideration with the points raised by the petitioner in the district court. In the consideration of these proceedings we are not favored with a transcript of what took place. We do have, however, a statement made by petitioner of what purports to be a verbatim report of a colloquy between the court and the petitioner. This does not rise to the dignity of an official transcript but we shall give the petitioner the benefit of treating it as such. When the application for a writ of habeas corpus was called for trial by the judge of the district court of Leavenworth county, the petitioner asked the court to appoint counsel for him. The trial judge stated that petitioner did not need counsel and proceeded to hear the application, whereupon petitioner represented himself.
In the proceedings in this court petitioner argues that this refusal of the trial court to appoint counsel for him was an error which will require a reversal of the judgment of the trial court. In this respect the proceedings takes on the appearance of an appeal. We are aware of the right of one charged with a crime to be represented by counsel. See Kan.Const. Bill of Rights, § 10; G.S.1935, 62-1304. However a hearing on a petition for a writ of habeas corpus is not a prosecution of an accused within the meaning of section 10 and section 10 does not require that in the hearing of such an application the petitioner be represented by counsel. Moreover, there are two other reasons why the action of the district court, to which reference has been made, is not sufficient to warrant a reversal of this judgment. In the first place, an examination of the entire record has convinced us that the petitioner did not suffer a substantial injury to his cause because he was represented by himself rather than by a lawyer. Indeed, it appears that the distinguished trial judge himself acted as counsel for petitioner and put the very best light possible upon the arguments petitioner was making as to why he should be released from the penitentiary. In the second place, this court will not reverse a judgment and order a new trial when it appears from the entire record that a new...
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