Morris v. State, 48799
| Decision Date | 20 January 1978 |
| Docket Number | No. 48799,48799 |
| Citation | 573 P.2d 1130,2 Kan.App.2d 34 |
| Parties | Veryl L. MORRIS, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The statutory requirement that a guilty plea be entered "in open court" implements and is coextensive with the constitutional guarantee of a "public trial."
2. While a common meaning of the word "chambers" is a room in which a judge performs the duties of his office, it is also used to connote the fact that judicial action was taken when the court was not in session. Thus, when a judge performs a judicial act while the court is not in session in the matter acted upon it is said that he acted "in chambers" whether the act was performed in the judge's chambers, the library, at his home, or elsewhere.
3. If, in the judge's office or "chambers," the court is in session as to the matter on trial, any judicial action is taken "in court" and not "in chambers."
4. The test of whether a session of court is "open" or a trial is "public" is whether the proceedings are accessible to members of the public who wish to attend.
5. In a proceeding under K.S.A. 60-1507 it is held : (a) a plea entered in the judge's office while court was in session, with the judge, prosecutor, defendant, defense counsel, and court reporter present, where it is not shown that any member of the public was excluded, was properly found to have been entered "in open court"; and (b) other contentions of the petitioner were properly found to be without merit.
Peter L. Irigonegaray, Topeka, for appellant.
Albert D. Keil, Asst. Dist. Atty., Curt T. Schneider, Atty. Gen., Gene M. Olander Dist. Atty., and Donald P. Morrison, former Asst. Dist. Atty., for appellee.
Before SPENCER, P. J., and FOTH and SWINEHART, JJ.
Veryl L. Morris filed this petition under K.S.A. 60-1507 to vacate two consecutive sentences of fifteen years to life which had been imposed on his plea of guilty to two counts of aggravated sodomy. The trial court appointed counsel, held a hearing, and denied the motion. This appeal followed.
The record indicates that petitioner was originally charged with thirteen felony counts, including the two involving young boys to which he pleaded guilty. He had at least two prior felony convictions, one of which also involved sexual offenses with children. As a result of plea bargaining he was permitted to plead to the two counts here in question, with eleven counts being dismissed. The habitual criminal act was not invoked.
On appeal he raises four points:
1. Petitioner makes no serious argument in this court to support his claim that his original trial counsel did not act competently. No factual basis is asserted, and the plea bargain struck represents probably the best that could have been done with the petitioner's case.
2. The two sentences imposed were for the same type of offense, but were based on separate incidents constituting separate crimes. He was not subjected to double jeopardy.
3. There is nothing to support his claim that his plea was involuntary or that there was a breach of any promise to him. The trial court carefully interrogated him at the time of the plea concerning his physical and mental condition, his understanding of the possible consequences of the plea as explained by the court, and the nature and extent of the plea bargain. Some of the same ground was retraced at the time of sentencing a month later. No complaint was registered then or in the interim. No suggestion appears of any promises by the prosecution or the court as to any particular sentence. In addition, the same judge presided over the plea, sentencing, and the hearing in this proceeding during which the previous transcripts were reviewed. The trial court thus had independent knowledge as to the merits of petitioner's claim of judicial involvement in the plea bargain.
4. Petitioner's only serious contention is that his plea was taken in chambers, rather than "in open court" as required by K.S.A. 22-3210(1). The record shows that the proceedings were removed to the judge's office without objection because the venire from which petitioner's jury would be drawn was present in the courtroom. The move was deemed advisable so that the prospective jurors would not be prejudiced should the proposed guilty plea proceedings be commenced but not consummated and a trial should prove necessary. The alternative was to clear the prospective jurors from the courtroom.
The contention that the proceedings were "in chambers" is without merit. The distinction between that term and "in court" is aptly noted in People v. Valenzuela, 259 Cal.App.2d 826, 66 Cal.Rptr. 825 (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1286, 22 L.Ed.2d 482 (1969). In that case, as in this, the proceedings were removed to the judge's office. There the defendant waived a jury and consented to a trial by the court. To be valid such a waiver was required by the California constitution to be made "in open court." The court observed:
The case relied on by petitioner here, State v. Start, 62 Kan. 111, 61 P. 394, involved judicial action taken by a judge while the court was in vacation and not in session. Under the Valenzuela definition such action was clearly "in chambers." Just as clearly, the action taken here was taken by the court while in session, and was thus "in court."
The Valenzuela case also discusses the "open" aspect of the phrase "in open court."
To continue reading
Request your trial
-
Horn v. State
...validity of his pleas, asserting that he did not enter them in open court. The trial court rejected the argument because in Morris v. State , 2 Kan. App. 2d 34, Syl. ¶ 5, 573 P.2d 1139 (1978), this court held that pleas entered in a judge's office while in the presence of the judge, prosecu......
-
State v. Brown
...time as they exercised each peremptory challenge. The problem is not an "open court" problem as that matter was determined in Morris v. State, 2 Kan.App.2d 34, Syl. P 3, 573 P.2d 1130 (1978), where it was "If, in the judge's office or 'chambers', the court is in session as to the matter on ......
-
State v. Sandstrom
...was again asked to reveal the identity of the informant, were not in "open court", although conducted in chambers. (Morris v. State, 2 Kan.App.2d 34, 573 P.2d 1130 (1978).) Finally, petitioner argues he should not be found in contempt because he relied in "good faith" on assertion of a cons......
-
State v. Horn
...now contends his plea was not in open court, providing good cause to withdraw his plea. The district court, citing Morris v. State, 2 Kan.App.2d 34, 573 P.2d 1130 (1978), ruled the plea was entered in open court. Morris is on point. In that case, the defendant's plea was taken in the judge'......