Miller v. Hudspeth

• Decision Date: 10 April 1948
• Docket Number: 37087.
• Citation: 192 P.2d 147,164 Kan. 688
• Parties: MILLER v. HUDSPETH et al.
• Court: Kansas Supreme Court

192 P.2d 147

164 Kan. 688

MILLER v. HUDSPETH et al.

No. 37087.

Supreme Court of Kansas

April 10, 1948

[Copyrighted Material Omitted]

Original habeas corpus proceedings on petition of George Miller opposed by R. H. Hudspeth, Warden of the State Penitentiary and Edward F. Arn, Attorney General, wherein the Hon. Elmer W. Columbia was appointed as commissioner to hear the evidence and make suggested findings of fact and conclusions of law. On petitioner's motion to have the findings and recommendations of the commissioner approved and on respondents' objections to portions of the findings and to allowance of the writ.

Writ denied.

Syllabus by the Court.

1. The question of innocence or guilt of a defendant is not justiciable in a habeas corpus proceeding.

2. A plea of guilty to be valid must be freely, knowingly and understandingly made. Otherwise it violates the constitutional guarantee of due process and is void.

3. A proceeding in habeas corpus which challenges the validity of a plea of guilty, the judgment rendered and the sentence imposed is a collateral attack.

4. In order to successfully set aside a judgment on collateral attack the judgment must be void.

5. A judgment carries with it a presumption of regularity.

6. The records of courts are not set aside upon the unsupported testimony of a petitioner for a writ of habeas corpus.

7. The burden of proof is on the petitioner in a habeas corpus proceeding to prove the grounds on which he seeks to invalidate the judgment and a sufficient ground therefor must be established by a clear and convincing preponderance of the evidence.

8. Mental unsoundness is a condition which must be proved. Sanity is presumed until the contrary is established.

9. Where a plea of guilty has been entered there can be no review of the sufficiency of evidence to support the judgment of conviction.

10. Where a record on appeal fails to present a question for review such failure does not constitute a violation of due process unless it prejudicially affects the substantial rights of the appellant.

11. Assuming the question of sentence is properly before this court in a habeas corpus proceeding this court will not disturb the sentence imposed by the trial court pursuant to a hearing under the provisions of G.S.1947 Supp. 21-403 in the total absence of a showing the sentence was the result of partiality, prejudice, oppression or corrupt motive, provided the sentence is within the limitations prescribed by law.

12. An attorney employed to represent a client is required to serve him loyally and to the best of his ability but there is no constitutional or statutory guarantee for the assistance of the most brilliant counsel.

13. The incompetency or negligence of an attorney employed by a defendant does not ordinarily constitute grounds for a new trial and a fortiori will not be grounds for the application of the fourteenth amendment.

14. The concept of the rule stated in the preceding paragraph is that the lack of skill and incompetency of the attorney is imputed to the defendant who employed him, the acts of the attorney thus becoming those of his client and so recognized and accepted by the court, unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them.

15. If the attorney selected by a defendant is so incompetent or dishonest or so improperly conducts defendant's case as to amount practically to no representation, the defendant is prejudiced and thereby deprived of a fair trial and a court should grant relief by use of the writ of habeas corpus.

16. A proceeding in habeas corpus examined, and held: (a) The record fails to establish the petitioner's plea of guilty and the judgment of conviction rendered pursuant thereto are void by reason of violating the constitutional guarantee of due process; and (b) if the question of the validity of the sentence imposed is properly before us, it cannot be disturbed on the record presented.

Edward Rooney, of Topeka (J. A. Dickinson and David Prager, both of Topeka, on the brief), for petitioner.

H. R. Fatzer, Asst. Atty. Gen., and Willis H. McQueary, County Atty. of Miami County, of Osawatomie (Edward F. Arn, Atty. Gen., on the brief), for respondents.

WEDELL Justice.

This is an original proceeding in habeas corpus.

The petitioner, George Miller, was convicted and sentenced to death by hanging pursuant to a plea of guilty on the charge of murder in the first degree. Execution of sentence was stayed by this court pending the hearing and determination of the appeal and until further order of this court.

The petitioner is a Negro and employed counsel of his own race in the criminal case. Subsequently this court, under circumstances to be stated later, appointed the Honorable Edward Rooney with directions and authority to confer with appellant and his counsel and to do any and all acts proper to present that case to this court and to take such further proceedings as he deemed necessary or proper to have the legal rights of the appellant adjudicated. Pursuant to such authorization appointed counsel alone filed the instant proceeding in habeas corpus.

Omitting formal parts of the verified petition it first, in substance, alleged: The appeal in the criminal case was wholly ineffectual to raise and issue and to give this court an opportunity to do substantial justice to the appellant.

The petition, in substance, further alleged the petitioner's imprisonment under the death sentence violated the law of this state and the state and federal constitutions in the following respects, to wit:

I. Petitioner was convicted and sentenced to die without due process of law as defined by the state and federal constitutions.

II. Petitioner was not properly represented by counsel as required by the state and federal constitutions and the statutes of Kansas.

III. Petitioner's plea of guilty was entered while in mortal fear of death at the hands of a mob which had severely beaten him causing injury to his body and impairing his hearing; (the injuries were alleged) the fear and pain combined impaired petitioner's judgment, reason and discretion; he was not aware of his constitutional rights and was not given a fair opportunity to defend himself or to prepare for trial.

IV. At the hearing to determine his sentence no evidence was introduced in his behalf by his counsel to show he had been an honorable citizen prior to the instant offense or to show his age, his meager education or the nature of his intellect.

V. The trial judge misapprehended the test and the basis in law governing the choice between the infliction of death and life imprisonment under the Kansas statutes and abused his discretion and denied the petitioner the equal protection of the law.

VI. The court was without jurisdiction to accept a plea of guilty or to pronounce sentence and the judgment and sentence were null and void.

VII. Petitioner did not have the benefit of counsel as provided by law and the court, therefore, was without jurisdiction.

VIII. The petitioner was non compos mentis due to a combination of fear, pain from the results of mob violence at the time of his arrest and ignorance and the court was without jurisdiction and the proceedings were void.

The verified answer and return of respondents, warden of the state penitentiary and the attorney general of the state, denied all allegations of the petition not thereafter admitted and, in substance, further alleged: No cause of action for the requested relief was pleaded; petitioner entered his plea of guilty to the crime of murder in the first degree and his plea was accepted in conformity to law; (certified copies of judgment, sentence, death warrant, commitment, report of federal bureau of investigation and the order of this court suspending sentence were attached) petitioner was at all times represented in the district court by Leroy E. Harris, a member of the bar, whom petitioner employed; an appeal from the judgment and sentence of the district court was pending in this court; the final judgment and sentence of the district court were valid and entitled to full faith and credit.

We pause to state the report of the Federal Bureau of Investigation disclosed no arrest or prosecution of the petitioner save the one now under consideration.

This court appointed the Honorable Elmer W. Columbia as its commissioner to hear the evidence and make suggested findings of fact and conclusions of law. The commissioner concluded the writ should be conditionally allowed, that is, since the defendant was in custody he should not be discharged but should be returned to Miami county and be given an opportunity to withdraw his plea of guilty and to have such other lawful proceedings as might be just and proper.

The petitioner moved to have the findings and recommendations of the commissioner approved. Respondents filed objections to portions thereof and to the allowance of the writ. The report of the commissioner will be treated later. This being an original proceeding the commissioner's findings are only advisory. The burden is on this court to determine the facts on the basis of the entire record. Bissell v. Amrine, 159 Kan. 358, 155 P.2d 413.

The entire proceedings in the criminal case were made a part of the instant proceeding. A statement of the chronological order of events is: February 3, 1947, commission of alleged offense; February 5, arraignment in justice court; February 10, preliminary hearing in justice court; February 13 information filed in district court; March 5, arraigned and plea of guilty; March 11, evidence presented to district court to determine the sentence pursuant to G.S.1947 Supp. 21-403; March 11, plea accepted; ...