Peterson v. State
| Decision Date | 21 January 1967 |
| Docket Number | No. 44374,44374 |
| Citation | 198 Kan. 26,422 P.2d 567 |
| Parties | Kenneth Elton PETERSON, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The proceedings in an action instituted pursuant to the terms of K.S.A. 60-1507 are examined and it is held: (1) The issues raised by petitioner's motion could be determined from the files and records in the sentencing court; (2) the findings of the trial court on each issue are supported by the record; and (3) it was not necessary for the petitioner to be brought before the court for a plenary hearing where such circumstances exist.
Richard L. Honeyman, Wichita, argued the cause and was on the briefs for appellant.
Tyler C. Lockett, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the briefs for appellee.
This is an appeal from an order overruling petitioner's motion to vacate or set aside a sentence in a proceeding brought under the provisions of K.S.A. 60-1507.
The petitioner sets out six points in his appeal. Five of the questions presented pertain to whether petitioner's constitutional rights were violated in the criminal proceeding which resulted in his conviction and sentence. In his sixth point petitioner claims the trial court erred in holding his motion presented no substantial issues of fact or questions of law requiring the presence of petitioner or appointment of counsel.
On March 7, 1960, the petitioner, who was represented at the time by counsel of his own choice, waived arraignment and entered a plea of guilty to robbery in the first degree (G.S.1949, 21-527, now K.S.A. 21-527.). The trial court, after interrogating petitioner and his counsel, accepted the plea, found petitioner guilty as charged, overruled petitioner's oral application for probation, and sentenced petitioner to the Kansas State Reformatory for a term of not less than ten nor more than twenty-one years pursuant to G.S. 1949, 21-530, now K.S.A. 21-530.
Thereafter petitioner was transported to the reformatory and later to the Kansas State Penitentiary where he is now confined. The record fails to disclose the circumstances of petitioner's transfer to the penitentiary.
The petitioner filed his motion, the subject of this appeal, in the sentencing court on February 18, 1965. On March 18, 1965, the trial court considered petitioner's motion. The journal entry of judgment reflects the trial court considered each point presented by petitioner in his motion, ruled adversely to petitioner in each instance, and concluded the motion should be overruled in its entirety.
We are convinced from our examination of the record on appeal that the findings and conclusions of the trial court are fully supported by the files and records considered by the court in overruling petitioner's motion. The trial court found that petitioner was represented either by appointed counsel or retained counsel at every critical stage of the proceedings. Our examination of the record reveals that petitioner appeared in division No. 1 of the Court of Common Pleas of Sedgwick County on October 6, 1959, at which time petitioner was apprised of the charges, an attorney was appointed to defend him, and his preliminary hearing was set for October 19, 1959. On this point the trial court further found, and the record so reflects, the preliminary hearing was continued until November 2, 1959, at which time petitioner appeared with his retained counsel, waived preliminary hearing, and was bound over for trial at the next term of the district court.
The record further discloses that petitioner appeared before the district court on March 7, 1960, with his retained counsel, waived arraignment, and entered his plea of guilty. The record shows that petitioner was not without counsel at any critical stage of his trial.
Petitioner claims that his constitutional rights were violated in obtaining his confession during extended interrogation without counsel and later in playing back a tape recording of his confession in the presence of petitioner, his counsel, and the presiding magistrate on the day of his preliminary hearing. The record discloses no objection was made to such procedure and further that such confession was never placed in evidence as petitioner entered a plea of guilty. The cases cited by petitioner all deal with confessions that were used as evidence in securing a conviction.
The trial court was warranted in finding petitioner's constitutional rights were not violated in this regard since the confession was never used in obtaining petitioner's conviction. Furthermore, the mere fact that petitioner was without counsel at the time of making the confession, standing alone, does not amount to a denial of his constitutional rights. (Powers v. State, 194 Kan. 820, 402 P.2d 328, and Goodwin v. State, 195 Kan. 414, 407 P.2d 528.)
Petitioner claims that his constitutional rights were violated when he was forced to appear in a police lineup. In ruling adversely to petitioner on this point the trial court found such procedure was for identification only and not a violation of petitioner's constitutional rights. The determination of the trial court is in accord with decisions of this court following the general rule that the scope of the privilege against self-incrimination is limited to compulsory oral examination...
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State v. Galloway, 55370
...State v. Herbert, 63 Kan. 516, 66 Pac. 235), including the extrajudicial identification of an accused in a police lineup (Peterson v. State, 198 Kan. 26, 422 P.2d 567; State v. Hill, "Although the courts are somewhat divided as to the competency of evidence of extrajudicial identification, ......
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Walker v. State
...New Mexico and Kansas, have so held in recent decisions. State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967); Peterson v. State, 198 Kan. 26, 422 P.2d 567 (1967); State v. Knight, 78 N.M. 482, 432 P.2d 838 (1967); State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967); Kiser v. State, 196 Kan. 736......
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State v. Childs
...State v. Herbert, 63 Kan. 516, 66 P. 235), including the extrajudicial identification of an accused in a police lineup (Peterson v. State, 198 Kan. 26, 422 P.2d 567; State v. Hill, Although the courts are somewhat divided as to the competency of evidence of extrajudicial identification, the......
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State v. Trotter
...process unless such delay in some way deprives the accused of a fair trial. (State v. Dobney, 199 Kan. 449, 429 P.2d 928; Peterson v. State, 198 Kan. 26, 422 P.2d 567; Witt v. State, supra; State v. McCarther, 196 Kan. 665, 414 P.2d 59; Cooper v. State, supra.) Here, defendant has failed to......