State v. Dunham, 47049

• Decision Date: 08 December 1972
• Docket Number: No. 47049,47049
• Citation: 517 P.2d 150,213 Kan. 469
• Parties: STATE of Kansas, Appellee, v. Kenneth D. DUNHAM, Appellant.
• Court: Kansas Supreme Court

Page 150

517 P.2d 150

213 Kan. 469

STATE of Kansas, Appellee, v. Kenneth D. DUNHAM, Appellant.

No. 47049.

Supreme Court of Kansas.

Dec. 8, 1972.

Syllabus by the Court

1. Before accepting a plea of guilty in a felony case a trial court must comply with the pertinent provisions of K.S.A.1972 Supp. 22-3210.

2. Under the provisions of K.S.A. 1972 Supp. 22-3210(7) a motion to withdraw a plea of guilty for good cause shown is addressed to the discretion of the trial court and its judgment will not be disturbed on appeal in the absence of an abuse of discretion.

3. A voluntary plea of guilty admits all well-pleaded facts of the crime charged, and a judgment and sentence imposed after such plea is not subject to collateral attack in a proceeding under K.S.A. 60-1507 on the ground there was no factual basis for the plea.

4. A child, under the age of sixteen years, whose case and custody has been assigned to the proprietor of a foster home by the department of social welfare or other agency acting under color of law is a 'ward' as that term is used in K.S.A.1972 Supp. 21-3504.

5. The adequacy of representation by an attorney in a criminal case is to be measured by the sum total of his representation.

6. Where a probationer is present and represented by counsel at a revocation hearing, and where he neither requests a continuance because of insufficient notice nor objects to proceeding with the hearing, he is deemed to have waived any question as to the sufficiency of notice and is in no position to complain of deficiencies therein.

7. In a proceeding to revoke probation under the provisions of K.S.A.1972 Supp. 22-3716 wherein there is evidence to support the trial court's order of revocation, the order will not be disturbed on appellate review.

8. The record of criminal proceedings wherein appellant entered a plea of guilty to the offense of indecent liberties with a ward, was granted probation which was subsequently revoked and wherein appellant's motion to withdraw his plea of guilty was denied, is examined and it is held: (1) Appellant's plea of guilty was accepted in compliance with the pertinent provisions of K.S.A.1972 Supp. 22-3210; (2) the trial court did not err in overruling appellant's motion to withdraw his plea; and (3) the trial court did not err in revoking appellant's probation.

William E. Enright, of Scott, Quinlan & Hecht, Topeka, argued the cause and Robert D. Hecht, Topeka, was with him on the brief for appellant.

Larry R. Mears, Asst. County Atty., argued the cause, and Vern Miller, Atty Gen., and J. David Farris, County Atty., were with him on the brief for appellee.

KAUL, Justice:

On October 8, 1971, defendant was convicted on a plea of guilty of taking indecent liberties with a ward as defined in K.S.A.1972 Supp. 21-3504. The imposition of sentence was suspended and defendant granted probation. On October 21, 1971, the state filed a motion for revocation of defendant's probation. After a full hearing on November 18, 1971, probation was revoked. The matter was then continued and a sentencing hearing was scheduled for December 16, 1971, after which defendant was sentenced to a term of five years pursuant to the provisions of K.S.A.1972 Supp. 21-4501(b). Thereafter defendant filed a motion to set aside his plea of guilty. The date of the filing is not shown. Hearings were had on this motion on April 10, 13 and 18, 1972. In the meantime defendant filed a new application for probation. Testimony was submitted at all three hearings. At the conclusion of the hearing on April 18, the trial court overruled defendant's motion to set aside his plea and denied his application for probation. Defendant appeals from his judgment of conviction, the order revoking his probation, and the overruling of his motion to withdraw his plea.

The state has filed a motion to dismiss the appeal and strenuously argues that appeal by defendant after a plea of guilty is precluded by the provisions of K.S.A.1972 Supp. 22-3601. Insofar as defendant's appeal from his conviction is concerned the state is on solid ground. We have held that 22-3601 expressly precludes appellate review in criminal cases where the defendant pled guilty after July 1, 1970, and that this court has no jurisdiction of such a purported appeal. (State v. Scott, 211 Kan. 68, 505 P.2d 703; and State v. Mitchell, 210 Kan. 470, 502 P.2d 850.) As the state points out, the issues raised by defendant concerning his conviction could have all been raised and adjudicated in a proceeding under K.S.A. 60-1507. At oral argument counsel for defendant and the state were interrogated concerning the nature of the issues raised. We were informed by counsel for both parties and it was agreed by them that insofar as the issues pertaining to defendant's conviction are concerned the proceedings below were actually treated, considered, and adjudicated in the same manner as if initiated by a motion under 60-1507 and, likewise, could be so treated on this appeal to this court. Under the circumstances we shall pass over the state's motion to dismiss and consider the issues raised by defendant concerning his conviction together with those alleged errors directed at the revocation of his probation.

The points specified and the arguments made concerning the alleged errors of the trial court in accepting defendant's plea of guilty and subsequently in overruling his motion to withdraw his plea are interwoven and will be considered and discussed together.

At this point, we pause to comment that we are confronted with a two hundred and seven page record in which the testimony of the various witnesses at the various hearings is not indexed so as to reflect at what page the testimony of a certain witness appears. This condition of the record adds to our burden and is not in compliance with Rule No. 6(g) (209 Kan. xxiv.) of our rules of appellate practice. We also note that some twenty-five pages of the record have been duplicated; a result, no doubt, of the lack of coordination between counsel with respect to designation and counterdesignation.

Defendant first contends that because of drugs and medicines which he claimed he had taken he was not in full possession of his faculties at the time he entered his plea and that the trial court was aware of his condition. Defendant advanced this same argument in support of his motion to withdraw his plea.

The record of the proceedings on arraignment on October 8, 1971, indicates that the trial court took painstaking care in meeting the requirements of K.S.A.1972 Supp. 22-3210 before accepting defendant's plea. The court personally interrogated defendant at length and in detail concerning the facts of the offense charged and the voluntariness of his plea. Defendant was fully informed concerning his right to a jury trial, the right to remain silent, and that the court was not bound to carry out any understanding that might have been arranged between defendant, his attorney, and the county attorney. Defendant's answers were freuently a simple 'yes' or 'no,' but such responses are more usual than unusual in the case of a defendant entering a plea of guilty on arraignment. Whenever defendant failed to respond or indicated lack of understanding the court persisted until defendant gave a responsive answer. At the conclusion of the allocution the court announced:

'Well, the Court finds that the plea is voluntarily made with an understanding of the nature and consequences of the plea; that there is a factual basis for the plea; and accepts the plea of guilty as charged under K.S.A. 21-3504. . . .'

In subsequent hearings on defendant's motion to withdraw his plea, defendant testified that he had taken four separate medicines on the day he entered his plea and had undergone surgery on his jaw two days before. Defendant called a registered pharmacist who testified that the drugs taken by defendant could cause some adverse reaction such as dizziness and possibly even affect reasoning power, but the pharmacist further testified that a physician would not likely give such a prescription where adverse reactions were noted. Defendant's family doctor testified that he could have prescribed some medication for defendant during October 1971 but that if so it was not reflected by his office records.

The state called, as a witness, Maurice P. O'Keefe, Jr., of Atchison, who was defendant's counsel at the time his plea of guilty was entered. In this connection it should be noted that at some time shortly after the state filed its motion to revoke probation, defendant changed counsel, and since that time has been represented by Robert D. Hecht and William E. Enright of the firm of Scott, Quinlan & Hecht of Topeka. Concerning defendant's appearance on the day of arraignment, Mr. O'Keefe testified:

'. . . He appeared to know everything that was going on. He did give the appearance of being a little bit woozy or something or some shots to calm his nerves or something. He didn't give the outright bright appearance that you would otherwise give, but he seemed to know everything he was doing. He seemed like a crushed man.'

In response to further interrogation, Mr. O'Keefe testified:

'There is no question in my mind but that Kenneth Dunham knew exactly what he was doing that morning.'

Mr. O'Keefe also testified concerning plea bargaining with the county attorney; the result of which was that counts II and III of the information, in which defendant was charged with having sexual intercourse with two other minor girls, were dismissed when defendant changed his plea to guilty on count I.

Sally Dennis, an employee of the county treasurer, testified that on October 8, 1971, (the date of arraignment the defendant appeared in the county treasurer's office to register a title application on a motor vehicle. She testified that she had seen defendant in the office before and that on this occasion he did not act any differently and appeared to be normal.

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