Perry v. State
| Decision Date | 09 March 1968 |
| Docket Number | No. 45140,45140 |
| Citation | 200 Kan. 690,438 P.2d 83 |
| Parties | James G. PERRY, Appellant, v. The STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When a proceeding is brought under the provisions of K.S.A. 60-1507 and the files and records of the case conclusively show that the petitioner is not entitled to relief, it is not required that counsel be appointed or that a formal plenary hearing be had, or that the petitioner be produced for a hearing.
2. The record in a proceeding commenced by the appellant pursuant to K.S.A. 60-1507, to set aside the sentence imposed by the district court upon his voluntary plea of guilty to the crime of robbery in the first degree, is examined, and it is held, the district court did not err in denying the appellant relief.
Douglas D. Johnson, Wichita, argued the cause, and was on the brief for appellant.
R. K. Hollingsworth, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
This is an appeal from an order denying the appellant's motion to vacate the sentence imposed on June 1, 1965, upon the district court's finding that 'the files and records of Case No. CR 1749-65 of this Court, captioned The State of Kansas, plaintiff, vs. James Gilbert Perry, defendant * * * conclusively show that Movant is entitled to no relief, and that said Motion should be overruled.' (K.S.A. 60-1507.)
The threshold question is whether the appellant's motion presented substantial questions of law or triable issues of fact which would require the district court to cause notice to be served upon the county attorney and to grant a prompt hearing upon the motion. (60-1507(b).)
The background of this matter is briefly summarized: On February 23, 1965, a written complaint was filed in the Court of Common Pleas of Sedgwick County, charging the appellant with two counts of robbery in the first degree, alleged to have been committed on February 20, and February 21, 1965, in Wichita, Kansas. Counsel was appointed to represent the appellant at the preliminary examination. On March 29, 1965, he appeared before the Court of Common Pleas with retained counsel and waived his right to a preliminary examination on both counts of robbery in the first degree. On that date he was bound over to the district court for trial at the next regular term on the charges alleged against him.
Shortly thereafter an information was filed in the district court charging the appellant with two counts of robbery in the first degree. Counsel was appointed to represent the appellant in the district court, who conferred with the appellant several times.
On June 1, 1965, the appellant appeared in the district court in person and with his counsel. The state dismissed count 2 of the information and the appellant waived arraignment and the formal reading of the information charging him in court 1 with first degree robbery.
Thereupon the district court fully explained to the appellant the exact nature of the charge pending against him and that the information charged him with the commission of robbery in the first degree. The district court then inquired of him, '(h)ow do you plead'? and the appellant answered, '(g)uilty.' The court then inquired of the appellant whether he was '(p)leading guilty because you are guilty'? and the appellant answered, '(t)hat's right.' The court then inquired, '(d)o you know of any legal reason why the court should not pronounce sentence at this time?' Counsel for appellant, Mr. Wall, replied, '(n)o, Your Honor.'
Thereafter, and upon the appellant's plea of guilty, the court imposed sentence upon the appellant that he be confined in the Kansas State Penitentiary for a period of not less than ten nor more than twenty-one years upon conviction of the charge of first degree robbery as defined in K.S.A. 21-527, the sentence being imposed pursuant to K.S.A. 21-530.
Counsel then moved the court that the appellant be granted probation, and stated, The court denied the request for probation.
The appellant filed no motion for a new trial, nor did he perfect an appeal to this court from his conviction.
On October 20, 1966, the appellant filed the motion out of which this appeal arises. He stated that his grounds were: (I) 'Interrogation of coercion'; (II) 'Lineup and interrogation'; (III) 'Complaint, Warrant, Information'; (IV) 'Matters of not having evidentiary hearing, preliminary hearing'; (V) 'Matters of trial proceedings' and (VI) 'Inadequate counsel.'
The appellant's motion did not list the names of any witnesses, nor did it contain other evidence to prove any of his alleged grounds. However, attached to his motion was a lengthy explanation of each of the grounds listed, liberally interspersed with legal citations. Summarized, he complains of illegal interrogation in lineup, defective complaint and warrant, lack of preliminary examination, defective information, invalid waiver of jury trial, conviction of felony without evidentiary hearing, collusion between court and counsel, coerced plea, and inadequate representation by counsel.
As indicated, the court summarily overruled the motion, finding that the records and files of the appellant's case in the district court conclusively show he was entitled to no relief.
The appellant contends in his brief that his allegations that he was induced to plead guilty by an illegal confession and fear of being sentenced under the Habitual Criminal Act raises substantial questions of fact which require an evidentiary hearing. We do not agree.
This court has reiterated countless times, in fact, so many that it is unnecessary to cite authority, that once a plea of guilty has been...
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