Smith v. State
| Decision Date | 05 March 1966 |
| Docket Number | No. 44448,44448 |
| Citation | 196 Kan. 438,411 P.2d 663 |
| Parties | Duane A. SMITH, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An indigent defendant does not have a constitutional right to have an examining magistrate furnish him with counsel for his preliminary hearing.
2. The well-established rule in this jurisdiction is that any claimed irregularities pertaining to a preliminary examination are deemed to be waived where a defendant, represented by counnsel, enters a voluntary plea of guilty in the district court.
3. In this jurisdiction the purpose of a preliminary examination before a magistrate for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found 'guilty.' A defendant is bound over for trial only where the state establishes that an offense has been committed and that there is probable cause for charging him with its commission--otherwise he is to be discharged. (K.S.A. 62-618.)
4. This court has long been committed to the well-established rule that the jurisdiction of a court to try a person accused of a crime, or accept his plea of guilty, is not divested by the fact that his arrest was irregular or unlawful.
5. 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 a formal plenary hearing be had or that counsel be appointed or that the petitioner be produced for a hearing. (Following Sanders v. State, 195 Kan. 701, 408 P.2d 587, and State v. Burnett, 194 Kan. 645, 400 P.2d 971.)
6. In a proceeding under K.S.A. 60-1507 to vacate and set aside a prior judgment and sentence of the district court in a criminal action the record is examined and it is held that under the facts, conditions and circumstances set forth at length in the opinion the trial court did not err in any of the particulars complained of.
Theodore M. Metz, Lincoln, argued the cause and was on the briefs, for appellant.
Richard W. Wahl, Sp. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the briefs, for appellee.
This is an appeal from an order and judgment of the district court of Lincoln County denying appellant's motion under K.S.A. 60-1507 to vacate and set aside a prior judgment and sentence of that court in a criminal action.
There is no dispute between the parties as to the facts controlling the questions raised by the appeal. They appear from an agreed statement of facts, signed by counsel and approved by the trial court. Such statement reads:
'In accordance with Rule Six (p) of the Rules of the Kansas Supreme Court, the following agreed statement of fact is submitted in lieu of a formal abstract in connection with the forthcoming appeal of this matter to the Supreme Court of Kansas by Duane A. Smith:
'1. The appellant herein was the defendant in an action entitled The State of Kansas vs. Duane A. Smith, Case No. 290 in the District Court of Lincoln County, Kansas, wherein the appellant was charged by the State of Kansas with burglary in the second degree and with grand larceny.
'2. The Complaint was filed in the County Court of Lincoln County, Kansas, on May 1, 1964.
'3. The offenses for which appellant was sentenced were committed on April 30, 1964, and he was arrested in the State of Nebraska on May 1, 1964, waived extradition and was returned to Lincoln County, Kansas, on May 2, 1964. The appellant now claims that said extradition was unlawful but the records do not disclose that this claim was made at either his preliminary hearing or at any appearance before the District Court.
'4. The appellant appeared before the County Court of Lincoln County, Kansas, on the 13th day of May, 1964. He appeared without counsel and waived preliminary hearing whereupon he was bound over to the next term of the District Court. Upon failure to post bond for his appearance at the District Court, appellant was committed to the Lincoln County Jail to await trial.
'5. On May 14, 1964, an Information was filed in the District Court of Lincoln County, Kansas by the county attorney charging appellant in two counts, namely, burglary in the second degree and grand larceny.
'6. On May 18, 1964, the appellant appeared before the District Court of Lincoln County, Kansas, without counsel, and the Court appointed G. L. Rohrer, a member of the Lincoln County Bar, to represent and defend the appellant in that case.
'7. After appointment of counsel, the Court granted a recess to allow appellant time to confer with his counsel, and after said recess the appellant announced himself ready for arraignment.
'8. After consultation with counsel, the appellant waived formal arraignment and entered his plea of guilty to both counts of the Information, and the Court accepted his plea and passed sentence upon appellant, all on the 18th day of May, 1964. Appellant was sentenced to be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of not less than five nor more than ten years on Count One of the Information, and for a period of not less than one nor more than five years on Count Two, said sentences to run concurrently.
'9. While in the custody of the Sheriff of Lincoln County, Kansas, the appellant, without advice of counsel, made a voluntary statement in writing admitting his participation in the offenses committed in Lincoln County, Kansas, but said statement was never used against him either on preliminary hearing or in the District Court, and the trial court was never apprised of said statement.
'10. On February 5, 1965, appellant filed a motion in the District Court of Lincoln County, Kansas, under the provisions of K.S.A. 60-1507 to vacate the judgment and sentence entered on May 18, 1964, in Criminal Case No. 290, on the grounds that he did not have counsel at his arraignment nor prior thereto; that his confession was taken between arrest and arraignment without advice of counsel and that he did not have counsel at the preliminary stage of the proceedings against him.
'11. On March 3, 1965, the District Court appointed Theodore M. Metz, a member of the Lincoln County Bar, to represent appellant on his motion.
'12. On June 9, 1965, the District Court entered an order finding that it was not necessary to produce appellant in person from the Kansas State Penitentiary for the hearing on his motion; that no rights of the appellant under the Constitution of the United States or the Constitution of the State of Kansas were denied or infringed; that the records of Criminal Case No. 290 showed conclusively that the appellant was not entitled to the relief asked for, and the application of the appellant was thereupon summarily denied.
'13. The appellant does appeal from the order and judgment of the District Court entered on June 9, 1965.
(Emphasis and , and supplied.)
In addition to what has just been quoted, and fully cognizant of that fact it involves some repetition, we deem it necessary to supplement the foregoing agreed statement of the parties by quoting the trial court's journal entry of judgment in order to insure a full and complete understanding of what that tribunal had before it in denying appellant's motion, which had been docketed in the district court of Lincoln County as Case No. 5476. Such journal entry reads:
'Thereupon, the Court examines the transcript and files of said case and finds that the Court heretofore appointed Theodore M. Metz, a member of the Lincoln County Bar, as attorney to represent the plaintiff in the presentation of this application; that said attorney has acted in the interests of the plaintiff, and that it is not necessary to produce the plaintiff in person from the Kansas State Penitentiary for this hearing.
'The Court further finds that the judgment and sentence of the Court entered in said Criminal Case No. 290 on May 18, 1964, was regular and in conformity with Kansas law; that the plaintiff was duly and fully advised of his rights of appeal to the Kansas Supreme Court from said judgment and sentence; that no rights of the plaintiff under the constitution of the United States or the constitution of the State of Kansas have been denied or infringed and that no constitutional right of the plaintiff was violated by failure to appoint counsel at his preliminary hearing in that plaintiff waived preliminary hearing, and no rights of the plaintiff were lost, and that the plaintiff, having entered a voluntary plea of guilty to the Information filed in this court, waived any irregularity that may have existed in his preliminary hearing.
'The Court further finds that the files and records in said case show conclusively that the plaintiff is not entitled to the relief asked for or to any other relief that has not been granted and that the application of the plaintiff should be summarily denied.
'IT IS THEREFORE BY THE COURT ORDERED that the application of the plaintiff, ...
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