Mann v. State

• Decision Date: 27 January 1968
• Docket Number: No. 45069,45069
• Citation: 436 P.2d 358,200 Kan. 422
• Parties: Charles D. MANN, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 358

436 P.2d 358

200 Kan. 422

Charles D. MANN, Appellant, v. STATE of Kansas, Appellee.

No. 45069.

Supreme Court of Kansas.

Jan. 27, 1968.

Syllabus by the Court

1. In this jurisdiction an indigent accused has no constitutional right to appointed counsel at his preliminary examination, and failure to provide counsel at such time does not constitute reversible error, absent a showing of prejudice to his substantial rights.

2. When the provisions of the habitual criminal statute (K.S.A. 21-107a) are to be invoked, the accused in a criminal action is entitled to reasonable notice of the intention of the state to invoke the act. However, this is a right which may be waived, and an increased sentence will not be vacated for lack of notice, where the accused admitted the former felony convictions and did not object to the increased sentence on the ground of lack of notice at the time of sentence.

3. Whether a plea of guilty was voluntarily entered in a criminal action is a question of fact in a collateral attack upon a judgment and sentence pursuant thereto; and in a proceeding under K.S.A. 60-1507 the burden of proof is upon the movant to establish his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant are insufficient to sustain the burden of proof.

4. The Supreme Court will not for the first time consider points on appeal which have not been brought to the attention of the trial court.

5. In a proceeding instituted pursuant to the provisions of K.S.A. 60-1507, wherein the petitioner was accorded a full evidentiary hearing with the aid of counsel, the record is examined and it is held: The trial court did not err in finding (a) that the failure to appoint counsel for the petitioner at his preliminary hearing did not violate his constitutional rights; (b) that the petitioner's right to be notified that the habitual criminal act was going to be invoked had been waived; (c) that the petitioner failed to sustain the burden of proof that his plea of guilty was not voluntarily entered; and (d) that the petitioner's court-appointed counsel adequately represented him at the time of his plea and sentencing in the criminal action.

M. K. Hoag, Pleasanton, argued the cause and was on the brief for the appellant.

Leighton A. Fossey, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for the appellee.

SCHROEDER, Justice:

This is an appeal by the petitioner from an order of the district court of Linn County, Kansas, denying relief in a proceeding instituted pursuant to K.S.A. 60-1507.

The grounds upon which the petitioner relied for relief in his motion were: (a) That he had no attorney at the preliminary hearing; (b) that he was not notified the habitual criminal act was going to be invoked until after he had entered a plea of guilty to the offense of breaking jail; (c) that he was given no preliminary examination upon the habitual criminal charge; and (d) that his court-appointed counsel failed to adequately represent him at the time of his plea and sentencing.

The criminal proceeding which resulted in the judgment and sentence here under attack by the petitioner was filed early in the year 1959. On the 5th day of February, 1959, the petitioner was brought into the district court for arraignment upon informations charging him with two offenses-breaking jail (G.S.1949, (now K.S.A.) 21-736), and stealing an automobile (G.S.1949, (now K.S.A.) 21-533 and 21-534.)

Harry C. Blaker, a duty licensed attorney, was appointed to represent the indigent petitioner. Upon arraignment the petitioner stood mute, following which the court entered a plea of not guilty upon each of the charges. Thereafter on the 5th day of March, 1959, the petitioner was again brought before the court, after having had an opportunity to consult with his court-appointed attorney. Thereupon the petitioner entered a plea of guilty to the charge of breaking jail, and the petitioner's attorney stated it was his understanding the county attorney would dismiss the court of grand larceny upon the petitioner's plea of guilty to the charge of breaking jail. Upon motion of the county attorney the court dismissed the information charging the petitioner with grand larceny of an automobile.

Upon interrogation by the court the petitioner stated he was twenty-five years of age. The county attorney informed the court he had a certified copy of a 1952 conviction in Anderson County for the crime of forgery; and an authenticated copy of the journal entry of conviction in the State of Colorado (Eagle County), where the petitioner was sentenced to the Colorado State Penitentiary for the offense of aggravated robbery.

Without objection by counsel for the petitioner, upon interrogation by the court, the petitioner informed the court he had served thirty-five months on the aggravated robbery charge in the Colorado State Penitentiary; was later paroled; and upon revocation of the parole served four more months. He further informed the court upon inquiry that he served eighteen months on the forgery charge, after having been originally paroled on that conviction. Immediately thereafter counsel for the petitioner asserted the provisions of G.S.1957 Supp., 62-2239, when it was learned the trial court intended to impose sentence upon the petitioner pursuant to the habitual criminal act for not less than fifteen years in the State Penitentiary.

Counsel for the petitioner in an effort to have the court set a low minimum pursuant to 62-2239, supra, argued as follows:

'MR. BLAKER: The jail break he has plead guilty to. The sentence is not to exceed 2 years or less than 6 months. This boy is a check writer. There is no question about that. He has been. He has written checks all over the country but with the exception of this one robbery thing which he says was with toy pistols-I don't know anything about it. It was in Colorado. There is no evidence or showing of any crime of violence. He is just a check writer. Like the boys who like automobiles write bad checks and get automobiles. Now, he started in Reform School when he was about 18. He never has been out of jail long enough to know what the world is like. As I said the other day, from my viewpoint even if he is 25, from where you and I sit or I sit he is still a kid. If you put him in the penitentiary for 15 years you might as well make it life. For jail break it could go down for 6 months except for this habitual criminal stuff. I don't think the court should sentence him to anything like 15 years. Two or three years in the penitentiary will either make a man out of him or ruin him.'

After further argument the court sentenced the petitioner as follows:

'* * * it is the judgment and sentence of the court that you be confined in the State Penitentiary for a period of not less than 15 years, and in view of Section 62-2239, the court does reduce the minimum sentence in accordance with said section of the Statute to a minimum of seven years. * * *'

On the 19th day of March, 1959, the appellant was again brought before the court when the court said, after giving further consideration to the matter, that he had misapplied the law and stated to the appellant: 'Therefore, I will change the sentence to the sentence first indicated in the matter-a minimum term of 15 years.'

Thereupon the appellant was delivered to the State Penitentiary at Lansing, Kansas, on the 20th day of March, 1959. In this 1507 proceeding the trial court gave the petitioner a full evidentiary hearing, at which he was present and represented by court-appointed counsel. The matter was heard on the 11th day of July, 1966, and from an adverse decision the petitioner, through counsel, has perfected an appeal to this court.

At the hearing in the 1507 proceeding the petitioner testified on his own behalf that his plea of guilty was not voluntarily entered; that he was led to believe that the habitual criminal act would not be invoked on his plea of guilty to the offense of jailbreak; and that he was not advised prior to the entry of his plea that the habitual criminal act would be invoked. The petitioner offered no evidence other than his own testimony, the transcript of the criminal proceedings, prepared by the court reporter, and the files and records in his original case.

The first point upon which the petitioner (appellant) relies on appeal is that he was thwarted in his attempt to take a direct appeal from his conviction. This point was not raised in the appellant's motion (on the form prescribed) filed in the district court.

It is fundamental that this court will not for the first time consider points on appeal which have not been brought to the attention of the trial court. (Peterson v. State, 200 Kan. 18, 434 P.2d 542; Minor v. State, 199 Kan. 189, 428 P.2d 760; and Tate v. State, 196 Kan. 435, 411 P.2d 661.)

Next the petitioner contends he was not represented by counsel at the preliminary hearing. On this point the trial court found the appellant was not prejudiced by reason thereof; and that there was no indication in the record that any of the proceedings at the preliminary examination were ever used against him.

In the recent case of Allen v. State, 199 Kan. 147, 427 P.2d 598, an argument similar to that of the appellant herein was answered as follows:

'* * * Ordinarily a preliminary examination is not deemed a critical stage of the proceedings in this jurisdiction. (State v. Richardson, 194 Kan. 471, 399 P.2d 799.) Inasmuch as an indigent accused has no constitutional right to appointed counsel at a preliminary examination, failure to provide counsel at such time does not constitute reversible error, absent a showing of prejudice to his substantial rights. A number of our recent decisions to this effect are found in Brown v. State, 198 Kan. 345, 424 P.2d 576. * * * In addition, petitioner's voluntary plea of guilty to the charge against him...