Smith v. Crouse

• Citation: 386 P.2d 295,192 Kan. 171
• Decision Date: 02 November 1963
• Docket Number: No. 43647,43647
• Parties: Sidney SMITH, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 295

386 P.2d 295

192 Kan. 171

Sidney SMITH, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.

No. 43647.

Supreme Court of Kansas.

Nov. 2, 1963.

Syllabus by the Court

In March, 1960, defendant, being represented by court-appointed counsel, was convicted of the offense of burglary in the district court of Bourbon county, and pursuant thereto was committed to the state penitentiary. In April, 1960, he filed an appeal, pro se. In August, 1960, he filed a motion in this court for the appointment of counsel to represent him in the appeal. On August 19, 1960, this court denied his motion for the appointment of counsel. In March, 1961, defendant being still confined, employed an attorney of Leavenworth to argue his appeal, which was still pending, and the attorney's name was entered as attorney of record in the files of this court. In the meantime, the state filed a motion to dismiss the appeal because of noncompliance with the provisions of the appeal statute (G.S.1949, 62-1724). Counsel for defendant filed a written response to the motion to dismiss the appeal. On April 12, 1961, the state's motion to dismiss was sustained and the appeal was dismissed.

On March 26, 1963, defendant, while still confined in the state penitentiary under the Bourbon county sentence, filed a petition in the district court of Leavenworth county for a writ of habeas corpus, alleging, among other things, that he had been unlawfully denied the appointment of counsel to represent him in his appeal to this court from the Bourbon county conviction and sentence.

Following a hearing, the district court of Leavenworth county denied the petition for a writ of habeas corpus. Defendant has appealed from that ruling.

The entire record is examined and considered, and, as fully set forth and discussed in the opinion, it is held:

(1) Under the provisions of the appeal statute (G.S.1949, 62-1724) and decisions of this court, defendant's appeal from the Bourbon county conviction and sentence was properly dismissed.

(2) On August 19, 1960, when defendant's motion for the appointment of counsel to represent him in his appeal was denied, there was no statute--either state or federal--and no rule or decision of this court or of the Supreme Court of the United States--which required the appointment of counsel for an indigent defendant on appeal.

(3) This court's denial of counsel on appeal was not erroneous.

(4) The decision of the Supreme Court of the United States in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, rendered on March 18, 1963, requiring the appointment of counsel on appeal for an indigent defendant in a state court, is construed and interpreted as not having retrospective application.

(5) The order of the district court of Leavenworth county denying the petition for a writ of habeas corpus was correct.

Robert B. Yohe, Kansas City, for appellant.

Arthur E. Palmer, Asst. Atty. Gen., and William M. Ferguson, Atty. Gen., on the brief, for appellee.

PRICE, Justice.

Sidney Smith was convicted in the district court of Bourbon county of the offense of burglary in the second degree. Pursuant thereto he was committed to the state penitentiary. His appeal, pro se, from that conviction and sentence was dismissed by this court. Subsequently he filed a petition in the district court of Leavenworth county for a writ of habeas corpus. Following a hearing the petition for a writ was denied. The appeal presently before us is from that order.

The basic question presented is whether he was entitled to be represented by court-appointed counsel in his appeal from the Bourbon county conviction and sentence.

Because of the nature of the case it will be necessary to narrate in detail the factual background of the matter.

On March 4, 1960, Smith, hereafter referred to as defendant, stood charged in the district court of Bourbon county with the offense of burglary in the second degree (G.S.1959 Supp. 21-520). Upon being informed by him that he did not have counsel to represent him and that he had no money or means to employ counsel, the district court, pursuant to the provisions of G.S.1959 Supp. 62- 1304, appointed Buford L. Shankel, a qualified and practicing attorney of the county, to represent him. On March 11, 1960, defendant and Mr. Shankel appeared in court and a plea of not guilty was entered. The case was set for trial by jury on March 18, 1960. The case proceeded to trial and defendant was found guilty as charged. Defendant's motion for a new trial was argued and overruled on March 25, 1960, and he was sentenced to confinement in the state penitentiary for a term of not less than five years nor more than ten years (G.S.1949, 21-523). Defendant then informed the court that he desired to appeal and requested that he be allowed to remain in the county jail. He made no request for the appointment of counsel to represent him on appeal. His request to remain in the county jail was denied and he was ordered placed in the custody of the sheriff for execution of the sentence. Shortly thereafter he was delivered to the state penitentiary.

On April 4, 1960, defendant--pro se--filed a notice of appeal with the clerk of the district court of Bourbon county, and on April 7, 1960, a copy of such notice of appeal, and a copy of the journal entry covering the trial proceedings in the district court, were transmitted to and filed in the office of the clerk of this court. The appeal in this court was docketed as case No. 42,067.

The records of this court show the following with respect to that appeal:

On April 21, 1960, defendant filed a motion for stay of sentence. On May 13, 1960, the motion for stay was denied becuase of noncompliance with the provisions of G.S.1949, 62-1724(b), relating to the steps to be taken by one seeking stay of execution of a sentence pending an appeal.

In the meantime the appeal had been set down for hearing for September 29, 1960.

On August 11, 1960, defendant filed a motion in which he stated that he had no money or other means with which to secure the services of an attorney and requested this court to appoint an attorney to represent him in the appeal.

On August 19, 1960, his motion for appointment of counsel was denied and the case was continued.

On December 15, 1960, defendant filed a petition in this court for a writ of habeas corpus, and it was docketed under the same case number (42,067) as his appeal.

On January 13, 1961, the petition for a writ of habeas corpus was denied upon the ground 'it seeks review of alleged trial error when an appeal from petitioner's conviction is presently pending in this court for that purpose.'

Later, defendant contacted James E. Fussell, an attorney in Leavenworth. On March 17, 1961, Mr. Fussell advised the clerk of this court by letter that he had just been retained by defendant to represent him in the appeal, which, in the meantime, had been set for hearing on April 4, 1961.

On March 18, 1961, Mr. Fussell filed a motion requesting that his name be entered as attorney of record for defendant in the appeal then pending. On March 21, 1961, this motion was allowed, and Mr. Fussell's name was entered as attorney of record.

On March 21, 1961, the state, by the attorney general and the county attorney of Bourbon county, filed a motion to dismiss the appeal on the ground:

'That notice of the appeal by appellant has not been served on the County Attorney of Bourbon County, Kansas, and proof of service has not been filed with the Clerk of the District Court as required by Section 62-1724, General Statutes of Kansas, 1949.'

A copy of this motion was mailed to defendant on the same date.

On the same date this motion to dismiss the appeal was filed (March 21, 1961) this court entered an order allowing Mr. Fussell, as attorney for defendant, twenty days in which to file a response, and the case was removed from the April 1961, assignment.

On April 7, 1961, Mr. Fussell filed a response to the state's motion to dismiss the appeal, requesting this court to deny the motion, and alleging:

'1. That he, Sidney Smith, Appellant herein did on or about April 1, 1960, serve a copy of his Notice of Appeal on the county attorney of Bourbon County, Kansas, by sending a copy thereof to the clerk of the District Court, Bourbon County, Kansas, via United States mail, postage prepaid and did in fact send three copies of such notice of appeal and advise the clerk of the district Court of Bourbon County, Kansas, that one such copy was to be served upon the county attorney of Bourbon County, Kansas.'

On April 12, 1961, this court entered an order dismissing the appeal on the authority of State v. Combs, 186 Kan. 247, 350 P.2d 129; State v. Shehi, 185 Kan. 551, 345 P.2d 684; State v. Sims, 184 Kan. 587, 337 P.2d 704, and G.S.1949, 62-1724.

Accordingly, defendant's appeal was dismissed.

On October 11, 1961, defendant filed in this court a petition for a writ of habeas corpus. It was docketed as case No. 42,835. On October 20, 1961, upon consideration of the petition, this court denied the same 'on the ground that habeas corpus is no substitute for an appeal to review trial errors.' On October 26, 1961, defendant filed a motion for rehearing. Prior to any action being taken on such motion for rehearing, defendant, on November 15, 1961, advised the clerk of this court by letter that he desired to withdraw the motion.

On March 26, 1963, while still confined in the state penitentiary under the Bourbon county sentence of March 25, 1960, defendant filed a petition for a writ of habeas corpus in the district court of Leavenworth county. Among other things, the petition, in pargagraphs 3(b) and 3(c) thereof, alleged that defendant was unlawfully detained and restrained of his liberty by the warden of the penitentiary because of the denial of counsel to handle his appeal, thus denying him the right to have his...