State v. Cox

• Decision Date: 12 December 1964
• Docket Number: No. 43967,43967
• Citation: 194 Kan. 120,397 P.2d 406
• Parties: STATE of Kansas, Appellant, v. Eddie D. COX, Appellee.
• Court: Kansas Supreme Court

Page 406

397 P.2d 406

194 Kan. 120

STATE of Kansas, Appellant, v. Eddie D. COX, Appellee.

No. 43967.

Supreme Court of Kansas.

Dec. 12, 1964.

Syllabus by the Court

The state may not for the first time introduce evidence of prior convictions for the purpose of imposition of a sentence pursuant to the Habitual Criminal Act (G.S.1949, 21-107a) when a defendant appears for resentencing more than two years after his original sentence was imposed.

Robert J. Lewis, Jr., Asst. Atty. Gen., argued the cause and William M. Ferguson, Atty. Gen., was with him on the briefs for appellant.

Wilbur G. Leonard, Topeka, argued the cause and was on the briefs for appellee.

PARKER, Chief Justice.

This is an appeal from an order and judgment correcting an erroneous sentence imposed in a criminal action.

The chronological facts required for a proper understanding of the single issue raised by this appeal will be related as briefly as the state of the record permits.

On March 18, 1960, Eddie D. Cox, represented by competent court-appointed counsel, was convicted by a jury of the crimes of assault with intent to kill (G.S.1949, 21-431) and kidnapping in the first degree (G.S.1959 Supp. 21-449). He was duly sentenced and subsequently appealed. This court in State v. Cox, 188 Kan. 500, 363 P.2d 528, reversed and remanded the case with directions to grant a new trial.

Upon return of the case to the district court of Geary County an amended information was filed charging Cox with commission of the crimes for which he had been previously convicted.

On September 12, 1961, after the court had reappointed his former counsel to represent him in the second trial, Cox was formally arraigned upon the amended information and, following some discussion between court and counsel, voluntarily entered a plea of guilty to the lesser crime of kidnapping in the second degree (G.S.1949, 21-450), such crime being a lesser offense included in the offense charged in count two of the amended information. This plea was accepted by the state and entered by the trial court as Cox's plea to count two. Cox then voluntarily entered a plea of guilty to the crime of assault with intent to kill as charged in count one.

Thereupon, based upon the aforesaid pleas, the trial court ordered, adjudged and decreed,

'* * * that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for the period of time of 25 years, or until otherwise discharged as provided by law, for the offense of kidnapping in the second degree as included in the offense charged in Count 2 of the amended information. This sentence is imposed under G.S., 21-450.

'* * * that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of time from 1 to 10 years, or until otherwise discharged as provided by law, for the offense of assault with intent to kill. This sentence imposed under G.S.1949, 21-431.

'* * * that said sentences shall be served concurrently.'

Approximately two years after he had been sentenced and confined in the penitentiary under the foregoing sentences, to be exact on August 9, 1963, Cox filed a motion for a nunc pro tunc order in the district court of Geary County wherein he alleged that the sentence of twenty-five years for kidnapping in the second degree was erroneous, in that G.S.1949, 21-450, provides that the punishment for such offense shall not exceed thirty years and asked for an order correcting such sentence and for imposition of the sentence required by law.

On September 4, 1963, the trial court gave consideration to the foregoing motion and, after finding that his sentence was in effect an illegal sentence insofar as it pertained to the kidnapping sentence and should be set aside and corrected, ordered and directed that Cox be brought before it on March 4, 1964, so that his erroneous kidnapping sentence could be set aside and a legal sentence, as required by 21-450, supra, be imposed against him.

At the hearing on March 4, 1964, the state, for the first time throughout the entire proceedings, sought to introduce evidence of prior convictions and asked the court to sentence Cox as an habitual criminal under G.S.1949, 21-107a. The trial court refused to allow the state to introduce evidence for the purpose of augumenting the sentence under the provisions of 21-107a, supra. In making its ruling it stated:

'The Court is of the opinion and takes the position and makes the decision that this case is here for corrective purposes only and for that alone and it may do and can do and must do only that that it could have done and should have done on September 12, 1961; that it is not within the province of the Court nor would it be the consent of the Court to let the defendant withdraw his plea of guilty to one of the counts. He stands before the Court guilty on both counts. He would not let the defendant diminish his plea nor will we let the State nor the Court permit the State to enlarge. This case was closed, the defendant stood before the Court guilty. We cannot go back of that and open it and let other evidence and testimony come in even as to the Habitual Act. The Court committed an error on September 12, 1961, and it may correct that error and do nothing more and it must stay within those bounds, within those limitations, and accordingly the objection of the defendant to the introduction of testimony and introduction of evidence pertaining to previous convictions is sustained, * * *.'

The court then set aside the initial sentences and proceeded to impose a sentence of not to exceed ten years on the assault count (21-431, supra) and a sentence of not to exceed thirty years on the kidnapping court (21-450, supra), as required by the respective statutes, the sentences to run concurrently. In addition it directed that the time defendant had spent in jail and in the Kansas State Penitentiary, from January 6, 1960, to the date of its order, should be deducted from, and credited to, his sentence.

Thereupon the state perfected the instant appeal under a single specification of error charging that the trial court erred in refusing to allow it to introduce evidence of prior felony convictions of the appellee (Cox) pursuant to 21-107a, supra, so that it could request that appellee be sentenced as an habitual criminal.

From the foregoing factual statement it becomes obvious the sole appellate question here involved is whether the state has a right, for the first time, to insist upon the introduction of evidence for the purpose of the imposition of a sentence pursuant to the Habitual Criminal Act (G.S.1949, 21-107a) when a defendant appears for resentencing more than two years after the original sentence was imposed.

We have no hesitancy in concluding that the all-decisive question just posed must be answered in the...