Ramsey v. Hand

• Decision Date: 10 December 1960
• Docket Number: No. 42217,42217
• Citation: 357 P.2d 810,187 Kan. 502
• Parties: Roy RAMSEY, Appellant, v. Tracy A. HAND, Warden Kansas State Penitentiary, Appellee.
• Court: Kansas Supreme Court

Page 810

357 P.2d 810

187 Kan. 502

Roy RAMSEY, Appellant, v. Tracy A. HAND, Warden Kansas State Penitentiary, Appellee.

No. 42217.

Supreme Court of Kansas.

Dec. 10, 1960.

Rehearing Denied Jan. 25, 1961.

Syllabus by the Court.

The record on appeal in a habeas corpus proceeding examined and it is held that, under the facts, conditions and circumstances set forth at length in the opinion, the judgment of the district court of Leavenworth County denying the petitioner's application for a writ of habeas corpus was proper and must be upheld.

Roy Ramsey, pro se.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the brief for appellee.

PARKER, Chief Justice.

This case involves the latest of a series of attempts made by Roy Ramsey in habeas corpus proceedings to obtain his release from the Kansas State Penitentiary, where he has been confined since October, 1948, under a judgment and decree of the district court of Crawford County Kansas, sentencing him to a life term in that institution for the crime of murder in the first degree.

In explanation of our statement to the effect this is the latest of a series of attempts made by Ramsey to obtain his release from the penitentiary by habeas corpus, and to the end it may be apparent how many opportunities have been afforded him in this court to present his contentions he is unlawfully restrained of his liberty under his present judgment and sentence because the records of the sentencing court disclose he was denied rights to equal protection and due process of law guaranteed him under the Kansas Constitution and the Fourteenth Amendment to the Constitution of the United States, we deem it both necessary and proper to refer, in chronological sequence, to judicial proceedings of record in which such contentions have been given consideration and attention.

Case No. 40,857, brought to this court in June, 1957, is reported in Ramsey v. Hand, 183 Kan. 307, 327 P.2d 1080. In that case the petition charged and the respondent's answer denied that Ramsey was unlawfully restrained of his liberty under the judgment and sentence in question because of case records in the district court disclosing that he had been denied equal protection and due process of law under the Kansas statutes and the Fourteenth Amendment to the Constitution of the United States. After careful consideration of all issues raised and presented by the parties in such case the petitioner's contentions were rejected and it was held that he was not entitled to a writ directing his release from the penitentiary.

Case No. 41,409, a habeas corpus proceeding, reached this court in November, 1958, and is reported in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, certiorari denied 362 U.S. 970, 80 S.Ct. 956, 4 L.Ed.2d 901. Throughout the proceedings in that case in this court petitioner was represented by reputable, capable and well-recognized attorneys who prepared his brief and appeared in his behalf when the cause was orally argued. The primary question presented was whether the district court which tried the petitioner on the first degree murder charge was without jurisdiction to accept his plea of guilty because of alleged failure on its part to find that appointment of counsel over petitioner's objection would not have been to his advantage. However it may be stated that other questions, relating to due process requirements of the Kansas Constitution and the Fourteenth Amendment to the Constitution of the United States, as well as the validity of a nunc pro tunc order made by the trial court, were raised in the briefs and given consideration by this court in reaching its decision that the record of petitioner's trial in district court resulting in his judgment and sentence showed that his rights had been safeguarded as provided by law, disclosed no error or irregularity sufficient to vitiate his judgment and sentence, and required denial of his petition and application for a writ of habeas corpus directing his release from custody under such judgment and sentence.

Notwithstanding the decision last above mentioned the petitioner in this case instituted a third habeas corpus proceeding in the district court of Leavenworth County on May 12, 1960, alleging in substance in his petition that he was unlawfully and illegally deprived of his liberty under the judgment and sentence imposed against him by the district court of Crawford County because his rights to due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States, had been violated by the nunc pro tunc order made by that court on February 22, 1958, and the manner in which it was entered. It should be noted at this point, that this same order was mentioned in 183 Kan. 307, 327 P.2d 1080 and expressly approved in 185 Kan. 350, 343 P.2d 225.

Following the filing of the foregoing petition the warden of the Kansas State Penitentiary filed an answer in which he denied all claims made by the petitioner respecting the invalidity of his restraint and alleged that he was holding him in custody under a valid judgment and decree of the district court of Crawford County, sentencing him to a life term in the penitentiary for the crime or murder in the first degree.

With issues joined as related the cause was heard by the district court of Leavenworth County which, after full and complete consideration of all issues raised by the parties, found that petitioner was not deprived of his constitutional rights under the Fourteenth Amendment to the Constitution of the United States in that he was denied due process of law by entry of the nunc pro tunc order in question; that he was not entitled to be discharged from the custody of the respondent, warden; that he was legally and lawfully in the warden's custody, and rendered judgment accordingly.

Thereupon petitioner gave notice of his appeal from the trial court's judgment and, having been granted the right on his application to proceed in forma pauperis, now brings such appeal to this court under specifications of error charging in substance that the trial court's action in denying his application for a writ of habeas corpus is erroneous because it erred in finding that his constitutional rights to due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States, were not violated by the order nunc pro tunc and the manner in which it was entered.

At the outset it should be stated, the facts and circumstances leading up to and resulting in petitioner's conviction and sentence in 1948, at a time when he was more than thirty-three years of age and made no claim of incompetency, are fully set forth and reported in our thoroughly considered and exhaustive opinion reportted in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225. So are this court's reasons for there holding that the judgment and sentence under which petitioner was then in custody of the respondent was valid and, as against all claims then relied on by petitioner, afforded no sound ground for a writ of habeas corpus directing his release from the penitentiary. The factual statement, to which we have referred, further includes a full and complete recital of the proceedings had in the district court prior to petitioner's arraignment in the criminal action. It clearly appears from such portion of the statement that petitioner was fully advised as to his rights to counsel and thereafter voluntarily executed a written waiver and objection to the appointment of counsel to represent him. The same statement also details the proceedings had in that court when it entered a nunc pro tunc order correcting the journal entry to show that prior to arraignment it had made a specific finding that appointment of counsel over petitioner's objection would not be to his advantage and that such finding, through oversight or omission of the then county attorney, had been inadvertently omitted from the journal entry and overlooked by the trial judge at the time that instrument was signed by him. Indeed all the facts and circumstances, decisive of a decision in the instant case, appear in the opinion to which we have heretofore referred. Therefore, since nothing would be gained by repeating what already appears in our published reports, we make, by reference, all facts, statements and findings contained in the opinion of that case a part of this opinion, as fully and completely as if they were set forth at length herein. In addition, based on the facts and circumstances here involved, we reaffirm and again approve our decision in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, 226, where it is held:

'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.

'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.

'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...