State v. Fountaine, 44831

• Decision Date: 12 July 1967
• Docket Number: No. 44831,44831
• Citation: 430 P.2d 235,199 Kan. 434
• Parties: STATE of Kansas, Appellee, v. George A. FOUNTAINE, Appellant.
• Court: Kansas Supreme Court

Page 235

430 P.2d 235

199 Kan. 434

STATE of Kansas, Appellee, v. George A. FOUNTAINE, Appellant.

No. 44831.

Supreme Court of Kansas.

July 12, 1967.

Syllabus by the Court

1. An invalid sentence may be changed to a new and valid sentence even though the original sentence has been partially executed.

2. Where a sentance originally imposed against a defendant is invalid, the court, in imposing a valid sentence, is limited to the same facts, conditions and circumstances which existed when the first sentence was pronounced.

3. Evidence of a prior conviction which was before the court in imposing an original sentence, found to be void, may be considered by the court on resentence.

4. When a second or subsequent appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not be given to such questions. (Following Waddell v. Woods, 160 Kan. 481, 163 P.2d 348.)

5. Where an original sentence is invalid a legal sentence may be imposed in substitution therefor, even though the latter sentence enlarges the punishment, provided the total of the term adjudged on resentencing plus the time already served, together with good time and incentive credits, does not exceed the maximum allowed by statute for the offense or offenses of which the defendant stands convicted.

6. The record is examined in an action wherein the court, in resentencing the defendant because of the invalidity of the original sentence imposed two consecutive sentences against the defendant as a second felony offender and, for reasons appearing in the opinion, it is held: 1. That the court had authority to resentence the defendant. 2. That the defendant was properly sentenced under the provisions of the Habitual Criminal Act. 3. That the new sentences imposed are valid.

Maurice P. O'Keefe, Jr., Atchison, argued the cause and was on the brief for appellant.

Richard H. Seaton, Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., and William E. Stillings, Special Counsel, Atchison, were with him on the brief, for appellee.

FONTRON, Justice:

This is an appeal by the defendant, George A. Fountaine, from two sentences imposed against him on June 10, 1966. The case appears before this court for the third time and a brief history is essential to an understanding of the issues which are involved. In this opinion we will refer to the appellant as the defendant or Fountaine and to appellee as the state.

The defendant originally pleaded guilty to charges of second degree burglary and larceny on April 27, 1960. Evidence of two prior convictions was introduced prior to sentence and Fountaine was sentenced as an habitual criminal to confinement in the state penitentiary for a term of thirty years. The defendant appealed pro se from this sentence. This court in State v. Fountaine, 188 Kan. 190, 360 P.2d 1119, upheld the sentence as being in compliance with applicable statutes. (See K.S.A. 21-107a and 21-109.)

In October, 1964, the defendant filed a motion praying for the recall of our mandate and for reinstatement of his appeal, the ground of his motion being that he was not furnished counsel on appeal. The defendant's motion was sustained in light of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and the appeal was reinstated. Appellate counsel was then appointed to assist Fountaine.

In the second appeal, State v. Fountaine, 196 Kan. 638, 414 P.2d 75, we held that the evidence of one of the two prior convictions offered by the state in invoking the provisions of the Habitual Criminal Act (K.S.A. 21-107a) had been erroneously admitted. The basis for our conclusion was that an adjudication of delinquency against a juvenile offender, pursuant to the Federal Juvenile Delinquency Act, was not a conviction of felony within the meaning of our Habitual Criminal Act and could not be used for the purpose of imposing increased punishment. We thereupon remanded the case to the court below, directing that the sentence be vacated and that defendant be resentenced.

On June 7, 1966, after the second Fountaine opinion was handed down, the state served notice on the defendant and his counsel that it intended to invoke the provisions of K.S.A. 21-107a by introducing evidence of one prior conviction. Thereafter, on June 10, 1966, Fountaine appeared in court with appointed counsel where his prior sentence was vacated. The state then introduced, and the court admitted, evidence of one prior conviction, described in the state's motion. The court thereupon sentenced the defendant to a term of not less than ten nor more than twenty years for burglary in the second degree, and to a term of not to exceed ten years for larceny, the sentence for larceny to run consecutive to and not concurrently with the burglary sentence.

After sentence had been pronounced the court stated that it intended the sentence to relate back to April 27, 1960 (the date of the original sentence). Later, on September 28, 1966, the court entered an order nunc pro tunc crediting the defendant with all time served under the sentence of April 27, 1960.

In the present appeal the defendant launches a three-pronged attack upon the sentences of June 10, 1966. We shall consider all three points, although not necessarily in the order in which they appear in defendant's brief.

We are aware of the fact that some six years had intervened between the time Fountaine was first sentenced and the date on which his first sentence was set aside and he was resentenced. However that fact alone would not, as Fountaine insists, vitiate the later sentences or deprive the court of authority to pronounce them. The first sentence was held by us to be invalid, in proceedings initiated by the defendant, and the trial court was required to impose a legal sentence upon the defendant.

The rule is well settled in this jurisdiction that an invalid sentence may be changed to a new and valid sentence even though the illegal sentence may have been partially executed. (State v. O'Keith, 136 Kan. 283, 15 P.2d 443; State v. Looney, 181 Kan. 402, 312 P.2d 212; Richardson v. Hand, 182 Kan. 326, 320 P.2d 837; Bridges v. State, 197 Kan. 704, 421 P.2d 45; Chambers v. State, 199 Kan. 483, 430 P.2d 241, this date decided.)

In this respect Kansas follows the decided weight of authority in this country. (21 Am.Jur.2d, Criminal Law, § 572, p. 539; 24 C.J.S. Criminal Law § 1589b, pp. 603-607; Anno. 168 A.L.R. 706, 719.) In Powell v. Commonwealth, 182 Va. 327, 28 S.E.2d 687, the court said:

'The authorities are unanimous in the view that a court may impose a valid sentence in substitution for one that is void, even though the execution of the void sentence has commenced.' (p. 340, 28 S.E.2d p. 692).

The rule has been applied in cases where both the original sentence and the substituted or corrected sentence have been imposed under recidivist statutes. (See State v. Nelson, 160 Fla. 744, 36 So.2d 427; People v. Waterman, 11 A.D.2d 622, 200 N.Y.S.2d 103.

The defendant also questions the trial court's authority to resentence him as a second offender under the Habitual Criminal Act. His argument in this regard is that the state could not for the first time, on resentencing, introduce evidence of a prior conviction to enhance the sentence. The fallacy in this argument lies in the fact that the state had introduced evidence of the identical previous conviction at the time of Fountaine's original sentence. Since this evidence was before the court when Fountaine was first sentenced, it could properly be considered when he was resentenced. (Bridges v. State, supra, 197 Kan. pp. 706-707, 421 P.2d 45.)

The recent case of State v. Cox, 194 Kan. 120, 397 P.2d 406, cited by the defendant, does not support his position. In that case, Cox was not sentenced originally as an habitual criminal and no evidence of previous convictions was introduced prior to the first sentence. Under those particular circumstances we said:

'* * * after the time for commitment to prison under a valid conviction has become fixed, whether the sentence imposed is valid or invalid, the state cannot introduce additional evidence for the purpose of increasing the sentence under which the defendant has been committed * * *' (pp. 124-125, 397 P.2d p. 410.)

We said also in Cox that where an original sentence is invalid the court, on resentencing, is limited, when imposing the correct sentence, to the same facts, conditions and circumstances which existed when the first sentence was pronounced. Since the prior conviction which the court considered in resentencing Fountaine was also in evidence at the time the original sentence was imposed, it is manifest that the Cox decision is not applicable here.

But the defendant maintains that evidence of the previous conviction was not properly before the court when he was originally sentenced. Fountaine predicates this claim on the contention that he had not been given prior notice of the state's intention to invoke the provisions of the Habitual Criminal Act.

This contention is not new so far as the defendant is concerned. The identical issue was raised by him in his second appeal where it was considered by this court and rejected. (See State v. Fountaine, 196 Kan. 638, 640, 414 P.2d 75.) Accordingly, this particular question has been resolved and is not subject to reconsideration in this appeal. Our rule is that when a subsequent appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions. (Waddell v. Woods, 160 Kan. 481, 163 P.2d 348; Stanolind Oil & Gas Co. v. Cities Service Gas Co., 181 Kan. 526, 313 P.2d 279; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P.2d 267.)

The point upon which the defendant places the greatest emphasis...