Ramsey v. Hand, 41409
| Decision Date | 03 August 1959 |
| Docket Number | No. 41409,41409 |
| Citation | 343 P.2d 225,185 Kan. 350 |
| Parties | Roy RAMSEY, Appellee, v. Tracy A. HAND, Warden of the Kansas State Penitentiary, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. When any person about to be arraigned upon an indictment or information for an offense against the laws of this state is without counsel to conduct his defense, it is jurisdictional to the acceptance of a plea of guilty by the trial court (a) that the trial court fully advise the accused of his rights to be represented by counsel; (b) that the accused be permitted to consult counsel of his own choosing if he desires to do so; and (c) if the accused is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, that the trial court appoint counsel to represent him, unless the accused states in writing that he does not want counsel to represent him and the court finds that the appointment of counsel over his objection will not be to his advantage; as provided in G.S.1949, 62-1304.
2. The primary rights of an accused to a trial, safeguarded as provided by G.S.1949, 62-1304, must be disclosed by a record which shows such rights were safeguarded.
3. Where an accused waives his right to be represented by counsel pursuant to the provisions of G.S.1949, 62-1304, the finding of the trial court that the appointment of counsel over the objection of the accused will not be to his advantage need not be an express finding which the trial court state in the record of the trial proceedings. Such finding must, however, appear in the journal entry of the trial and judgment to show that such finding was in fact made.
4. In a situation described in Syllabus p3, where the trial court did in fact make a finding that the appointment of counsel over the objection of the accused would not be to his advantage, after full compliance with the other jurisdictional provisions, but such finding does not appear in the transcript of the record or the original journal entry as filed, it is held: The correction of the journal entry nunc pro tunc by the trial court to show that such finding was actually made prior to the acceptance of a plea of guilty is proper.
5. If the journal entry fails to accurately reflect what actually transpired in the conviction proceedings, it is the duty of the trial court to correct the journal entry nunc pro tunc in order that it might accurately reflect what actually transpired.
6. When a motion for an order nunc pro tunc is pending, the trial judge's personal recollection of the facts and circumstances under which the judgment was rendered, and of the court's purpose and intention in rendering it, has the probative force of evidence bearing on the propriety of granting or denying the motion presented for determination.
7. A nunc pro tunc entry of record is competent evidence of the facts which it recites. It is conclusive on any other court in which the record is offered in evidence, and it cannot be impeached collaterally.
8. In a habeas corpus action where the transcript of the record of conviction proceedings has not been filed as required by G.S.1949, 62-1304, such failure to file the transcript, not being jurisdictional to the acceptance of a plea of guilty, is waived by the petitioner in asserting the transcript and in relying upon it to establish his grounds for release.
9. In a habeas corpus action, where the clerk of the district court takes notes and prepares the transcript, which she certifies to be a true and correct copy of the shorthand notes taken by her at the hearing, and not the court reporter as required by G.S.1949, 62-1304, such failure, not being jurisdictional to the acceptance of a plea of guilty, is waived by the petitioner in asserting the transcript of the record made by the clerk and in relying upon it to establish his grounds for release.
Charles N. Henson, Jr., Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., and John A. Emerson, Asst. Atty. Gen., were with him on the briefs for appellant.
Gerald L. Goodell, Topeka, argued the cause, and Lester M. Goodell, Margaret McGurnaghan, Marlin S. Casey, Raymond Briman, and Thomas R. Sewell, Topeka, were with him on the briefs for appellee.
This is an appeal in a habeas corpus action by the warden of the state penitentiary from an order of the district court of Leavenworth County granting the petitioner's writ and directing his discharge.
The primary question presented is whether the district court of Crawford County, which originally tried the petitioner on a first degree murder charge, was without jurisdiction to accept his plea of guilty because of alleged failure of the district judge to find that appointment of counsel over petitioner's objection would not have been to his advantage.
The petitioner, Roy Ramsey (appellee), is presently confined in the Kansas State Penitentiary, pursuant to a conviction of first degree murder on October 16, 1948, and a sentence to confinement at hard labor for life adjudged on that date in the district court of Crawford County, Kansas. Ramsey entered a plea of guilty to the charge.
On June 7, 1957, Ramsey filed a petition for writ of habeas corpus in the district court of Leavenworth County, Kansas. This writ was denied in the lower court on June 18, 1957, and appealed to this court where the decision was affirmed. Ramsey v. Hand, 183 Kan. 307, 327 P.2d 1080. The point now presented was not raised by the petitioner in that action.
On October 1, 1958, Ramsey filed another petition for writ of habeas corpus in the district court of Leavenworth County, and on November 10, 1958, the lower court found in favor of the petitioner and the writ was granted. Crawford County authorities immediately rearrested Ramsey and the warden (appellant) filed the present appeal. The appellant also moved this court to advance the date for hearing and to recommit the appellee to the Kansas State Penitentiary pending the outcome of this appeal. These motions were granted.
The records of the city court of Pittsburg, Kansas, disclosed that on October 16, 1948, a complaint was filed in that court alleging that on or about the 14th day of January, 1948, Roy Ramsey and two others, while attempting to perpetrate a burglary, robbery and larceny, committed first degree murder. Ramsey appeared in court on October 16, 1948, and waived preliminary hearing. For details see Ramsey v. Hand, supra. On the same day an information was filed in the district court charging Ramsey with first degree murder.
A transcript of the proceedings in the district court of Crawford County, Kansas, relative to waiver of counsel by the petitioner discloses that pursuant to the request of the county attorney the trial court advised Ramsey concerning his right to have legal counsel. The transcript discloses Ramsey informed the trial judge pursuant to interrogatories that he was 33 years of age; that his home was in Chillicothe, Missouri; that he went to school as far as the seventh grade--two years of industrial school; and that he could read and write and understand the English language. He was then asked questions which he answered as follows:
'Judge Resler: Did you see this waiver the County Attorney prepared?
'Judge Resler: I will ask the Clerk of the District Court to read this Waiver to you, here in open Court.'
The clerk of the district court thereupon read the waiver to Ramsey and it was voluntarily signed and acknowledged by him. Thereupon the county attorney read the information, to which Ramsey entered his plea of guilty.
The transcript was certified by the clerk of the district court of Crawford County, Kansas, as being a true and correct copy of the shorthand notes taken by her at the hearing. For reasons not shown in the abstract the official court reporter was not present.
The journal entry of the trial court dated October 16, 1948, failed to recite a finding by the trial court that the appointment of counsel by the court over Ramsey's written waiver and objection would not be to Ramsey's advantage.
The journal entry does, however, disclose that the State offered in evidence a statement duly executed by Ramsey, admitting his part in the crime as charged by the information, which Ramsey read and stated to be true. This statement was admitted into evidence with the permission of Ramsey. Additional statements were offered in evidence by the State and admitted with the permission of Ramsey after he had read such statements and acknowledged them to be true. Thereupon the trial court accepted Ramsey's plea of guilty to murder in the first degree as charged by the information.
On the 22nd day of February, 1958, Judge Resler, being the same judge who heard Ramsey's case on October 16, 1948, in the district court of Crawford County, entered an order nunc pro tunc correcting the journal entry in said case, which insofar as pertinent herein reads:
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