State v. Dolack, 47560

• Decision Date: 05 April 1975
• Docket Number: No. 47560,47560
• Citation: 533 P.2d 1282,216 Kan. 622
• Parties: STATE of Kansas, Appellant, v. Henry John DOLACK, Appellee.
• Court: Kansas Supreme Court

Page 1282

533 P.2d 1282

216 Kan. 622

STATE of Kansas, Appellant, v. Henry John DOLACK, Appellee.

No. 47560.

Supreme Court of Kansas.

April 5, 1975.

Syllabus by the Court

1. The language of Section 10 of the Bill of Rights of the Constitution of Kansas is very similar to language contained in the Fifth Amendment to the Constitution of the United States providing in effect that no person shall be twice put in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does Section 10 of the Bill of Rights of the Kansas Constitution. Those constitutional provisions provide protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense.

2. In Kansas, the effect of former prosecution is clearly delineated by K.S.A. 21-3108. The statutory policy expressed therein is sound in that while it is fair to the accused that he should be tried but once for his alleged misconduct, by whatever jurisdiction, it is likewise fair to the State that the errors of another sovereignty should not deprive Kansas of its right to try one alleged to have violated its criminal laws.

3. It is a well-established rule that the Legislature may, within reason, define what is meant by the constitutional guarantee of a speedy trial. (Following Townsend v. State, 215 Kan. 485, 524 P.2d 758.)

4. The right of an inmate to a speedy trial who is confined in a penal or correctional institution in this state, or confined in a penal or correctional institution in another state, is governed solely by the detainer statutes-in the first instance, by the Uniform Mandatory Disposition of Detainers Act (K.S.A. 22-4301 et seq.), and in the second instance, by the Agreement on Detainers (K.S.A. 22-4401 et seq.). (The second instance includes an inmate who is confined in the United States Penitentiary at Leavenworth, Kansas.)

5. To obtain the right of a speedy public trial provided by Section 10 of our Bill of Rights, as legislatively defined by the Agreement on Detainers, it is incumbent upon the accused incarcerated in a penal institution in another state to comply with all provisions of the Act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it. (Following Brimer v. State, 195 Kan. 107, 402 P.2d 789. Syl. 2.)

6. In an appeal by the State from an order of the district court sustaining the defendant's motion to dismiss an information charging him with aggravated kidnapping (K.S.A. 21-3421), the record on appeal is examined, and as more fully set forth in the opinion, it is held: The defendant cannot claim former jeopardy as to a crime of which he was convicted, when that conviction is set aside, reversed, or vacated (K.S.A. 21-3108(4)(c)); the defendant was not denied a speedy trial as prescribed by K.S.A. 22-4401, Agreement on Detainers; the defendant was not denied due process of law, nor was he denied his right to counsel in proceedings against him in the state courts.

J. J. B. Wiggelsworth, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Margaret W. Jordan, Dist. Atty., were with him on the brief for appellant.

David J. Waxse, of Payne & Jones, Olathe, argued the cause and was on the brief for appellee.

FATZER, Chief Justice:

This is an appeal by the state from an order of the district court sustaining defendant Henry John Dolack's motion to dismiss an information charging him with aggravated kidnapping. (K.S.A. 21-3421.) The complexity attending this appeal requires a detailed recital of the facts.

The victim and complaining witness has given testimony that in the early morning hours of October 7, 1970, she ran out of gasoline and Dolack pulled up beside her in his car and forced her at gun point to get into his car; that they drove from Missouri to Kansas City, Kansas, and still at gun point, Dolack forced her to have sexual intercourse with him in his car; that they then drove to a motel in Johnson County, Kansas, and on the way to Dolack's room she started screaming and fell to the pavement, and that the defendant, after encountering a police officer in a patrol car who was responding to her screams, went to his car and drove off. The victim testified she had a gun, but that it was in her purse which the defendant threw into the back seat of his car.

Five days later, and on October 12, 1970, a complaint was filed in the Magistrate court of Johnson County, Kansas, in Case No. 22233, charging the defendant with aggravated kidnapping (K.S.A. 21-3421), and rape (K.S.A. 21-3502). A warrant was issued for the defendant's arrest.

On the same day the complaint was filed and the arrest warrant issued in Johnson County, the defendant was arrested in Saskatchewan, Canada. He was sentenced to a term of two years in a Canadian penal institution on unrelated Canadian charges.

On October 21, 1970, an indictment was returned by a federal grand jury for the district of Kansas, charging that on or about October 7, 1970, the defendant unlawfully transported in interstate commerce from Kansas City, Missouri, to Kansas City, Kansas, a named female person who theretofore had been unlawfully kidnapped and held for sexual gratification, and that the female person was not liberated unharmed, but was raped, lacerated and bruised by the defendant in violation of 18 U.S.C. § 1201.

On May 26, 1971, some seven months after the federal indictment was returned, Dolack was 'unofficially' informed by Canadian officials of the indictment. Upon learning of the indictment, Dolack wrote the chief judge of the United States District Court for the District of Kansas of his incarceration, his expected release date, and that he was a United States citizen 'without fund, real or otherwise to employ counsel, and, there are no interested parties to absorb such costs.' He requested the court to appoint counsel to represent him, to grant appointed counsel travel expenses to confer with him at the Canadian prison, and to grant appointed counsel the authority to employ a private investigator to assist him in his defense. Dolack also requested a copy of the federal charges be sent him. His letter was filed with the federal court on June 3, 1971.

The court denied Dolack's request with the notation that 'Motion denied until such time as deft present in this District,' and 'Copy of indictment mailed to Deft on 6/4/71.'

On June 6, 1972, Dolack was released by Canadian authorities to the Federal Bureau of Investigation. On June 7, 1972, he was arrigned before a United States Magistrate in Port of Raymond, Montana. On the following day, June 8, 1972, he was delivered to the county jail in Yellowstone County, Montana. On or about June 24, 1972, he was transferred to the Wyandotte County jail in Kansas City, Kansas, where he was held for trial in default of a $20,000 bond.

In June, 1972, during the pendency of the federal prosecution against Dolack, the Johnson County attorney decided to prosecute on the state charges alleged in Case No. 22233, and directed the sheriff to lodge a detainer with the United States marshal. Dolack learned of the state's intention when he was conferring with his federally appointed counsel in the Wyandotte County jail in August 1972.

On October 16, 1972, Dolack was brought to trial in the United States District Court for the District of Kansas, on the charge of kidnapping. Two days later, on October 18, 1972, he was convicted by a jury of the federal charge. Dolack's motion for a new trial was denied, and he was sentenced for a term of 25 years in the federal penitentiary at Leavenworth, Kansas.

On November 8, 1972, Dolack perfected an appeal to the United States Court of Appeals for the Tenth Circuit. As hereafter indicated, the appeal was heard and the court's opinion was filed on September 14, 1973, reversing the conviction and directing dismissal of the indictment against Dolack.

In the meantime, and on or about November 16, 1972, the sheriff of Johnson County lodged a detainer against Dolack with the warden of the federal prison. Dolack was informed of the detainer, and on January 23, 1973, he wrote the Johnson County attorney that '(i)f your office intends to prosecute the cause I am hereby giving notice I wish to have a speedy trial pursuant to the laws and Constitutions of the United States and the state of Kansas as well as the rulings of the Supreme Court of the United States'; that '(s)hould you feel it necessary I shall file a formal motion for speedy trial with the court as well as motions for bar to prosecution for want of prosecution; and on grounds of double jeopardy,' and that 'I am available for trial. I wish a speedy trial or dismissal of the detainer and prosecution.'

On February 21, 1973, the district attorney of Johnson County (office of county attorney abolished, K.S.A. 22a-101 wrote Dolack the state intended to prosecute and '(i)f you want to request final disposition of this detainer you can contact the Warden's Office and request the proper forms that are available to you pursuant to the Uniform Agreement on Detainers. (K.S.A. 22-4401 et seq.) As soon as we are in receipt of your properly executed request . . . we will take the necessary steps to bring you before the Johnson County Magistrate Court.'

Failing to hear from Dolack, the district attorney wrote the Warden of the federal penitentiary on March 27, 1973, advising that '. . . To date we have not received his properly executed request,' and asking the warden to inform 'this office whether or not the inmate intends to proceed with his request.'

On April 4, 1973, the Warden wrote the district attorney that Dolack 'informed us...