State v. Fountaine

Decision Date07 May 1966
Docket NumberNo. 42337,42337
Citation196 Kan. 638,414 P.2d 75
PartiesSTATE of Kansas, Appellee, v. George A. FOUNTAINE, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Failure to appoint counsel for an accused at his preliminary examination does not violate his constitutional rights or constitute reversible error, in the absence of a showing that he was thereby prejudiced.

2. An accused is entitled to reasonable notice before sentence that the provisions of the Habitual Criminal Act will be invoked against him, but this is a right which may be waived.

3. An adjudication of delinquency against a juvenile, pursuant to the provisions of the Federal Juvenile Delinquency Act, does not constitute a conviction of felony within the purview of the Habitual Criminal Act, and such an adjudication may not be used as a basis for enhancing the punishment imposed against an accused.

John S. May, Atchison, argued the cause and was on the brief for the appellant.

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

FONTRON, Justice.

The defendant, George A. Fountaine, has appealed from the judgment and sentence imposed against him pursuant to the provisions of the Habitual Criminal Act.

On April 27, 1960, Fountaine appeared before the District Court of Atchison County, Kansas, to answer charges of second-degree burglary and larceny. Mr. Robert D. Caplinger, an Atchison attorney, was appointed counsel for the defendant. Upon arraignment, Fountaine entered pleas of guilty to both charges. Thereupon, the state introduced evidence of two alleged prior convictions, and the defendant was sentenced to a term of thirty years in the Kansas State Penitentiary as a third-time offender.

From that judgment and sentence, the defendant, pro se, perfected an appeal. That appeal was heard and determined by this court and our opinion affirming the trial court is reported in State v. Fountaine, 188 Kan. 190, 360 P.2d 1119. Those appellate proceedings predated Rule No. 56 (now Prefatory Rule No. 1(f), 194 Kan. xii) promulgated April 16, 1963, and appellate counsel was not provided the defendant at that time.

On October 24, 1964, the defendant filed a motion in this court asking that our mandate be recealled and the appeal reinstated, the basis of his motion being that he was not furnished counsel on the appeal. This court sustained the defendant's motion, in light of Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and reinstated the appeal. Mr. John S. May, a practicing attorney of Atchison, Kansas, was thereafter appointed to represent the defendant and has acted as his counsel throughout the present appeal.

The current appeal raises three points, none of which were presented before: (1) The sentence of thirty years is void because one of the two prior convictions relied on was for violation of the Federal Juvenile Delinquency Act; (2) the defendant was not provided with counsel at every stage of the proceedings; and (3) the defendant was not given notice prior to arraignment and sentencing that the Habitual Criminal Act was to be considered. We will consider the points out of order, and turn first to points (2) and (3).

The defendant's complaint that he was not furnished counsel at every stage of the proceedings boils down to this: That he was not represented by counsel at his preliminary examination. This complaint is without substance. We have declared many times that the preliminary examination, under Kansas procedure, is not a critical phase in the accusatory process and that failure to appoint counsel to represent an accused at that time does not infringe upon his constitutional rights or constitute reversible error, absent a showing that he was prejudiced thereby. (State v. Richardson, 194 Kan. 471, 399 P.2d 799; Cooper v. State 196 Kan. 421, 411 P.2d 652, and cases cited therein.)

We proceed next to the claim that the defendant was not notified of the state's intention to invoke the provisions of the Habitual Criminal Act (K.S.A. 21-107a). There is nothing in the record to indicate that the state gave Fountaine any notice prior to his arraignment. However, counsel for the state points out that the trial court explained the provisions of 21-107a, supra, to the defendant just before his arraignment and maintains that such advice satisfied the requirements of notice.

We need not decide whether the explanation given defendant by the court can be equated with notice that the state would request sentence under the Habitual Criminal Act, for the defendant is in no position at this time to complain of insufficient or inadequate notice. Fountaine was present and represented by counsel when sentence was imposed and neither he nor his counsel objected to the state's offer of proof. Neither did the defendant claim surprise, nor ask for a continuance, nor seek further time to meet and refute the state's evidence. Although an accused is entitled to reasonable notice before sentence is pronounced under the Habitual Criminal Act, this is a right which may be waived. (Browning v. Hand, 10 Cir. (1960), 284 F.2d 346, 347.) Under the circumstances shown to exist in this case, the defendant may not now assert that he was deprived of an opportunity to be heard. The time to complain was then, not now. (Kelly v. State, 196 Kan. 428, 431, 411 P.2d 611; Chance v. State, 195 Kan. 711, 408 P.2d 677.)

The issue of gravest concern is raised by defendant's first point: That the trial court, in imposing sentence under the Habitual Criminal Act, used as one of two prior convictions, a 1942 adjudication of juvenile delinquency under the Federal Juvenile Delinquency Act. Before discussing this issue in depth, we pause to say that the journal entry of conviction contains no reference whatever to such an adjudication but contains, instead, a finding that the defendant was convicted in 1942 of violating the Dyer Act and was confined in the Federal Reformatory at Chillicothe, Ohio.

Such was the state of the record when the first appeal was heard by us, and our decision in that appeal was rendered on the assumption that the defendant had actually been convicted in 1942 of violating the Dyer Act. However, it conclusively appears from the record which is now before us, and it is now conceded by the state, that in 1942 Fountaine had pleaded guilty of 'Unlawfully committing offense which rendered him guilty of violation of Federal Juvenile Delinquency Act,' and that he was thereupon 'committed to the custody of the Attorney General for imprisonment in an institution to be designated by the Attorney General or his authorized representative for the period of THREE (3) YEARS.'

Thus, the question before us now is whether the defendant's plea of guilty of a violation of the Federal Juvenile Delinquency Act, and his commitment thereon, can be said to constitute a conviction of felony within the purview of the Kansas Habitual Criminal Act. Pertinent provisions of the federal act (18 U.S.C.A. §§ 5031-5037) are as follows:

§ 5031. For the purposes of this chapter a 'juvenile' is a person who has not attained his eighteenth birthday, and 'juvenile delinquency' is the violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. June 25, 1948, c. 645, 62 Stat. 857.

' § 5032. A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.

'In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation. June 25, 1948, c. 645, 62 Stat. 857.

' § 5033. District Courts of the United States shall have jurisdiction of proceedings against juvenile delinquents. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The proceeding shall be without a jury. The consent required to be given by the juvenile shall be given by him in writing before a Judge of the District Court of the United States having cognizance of the alleged violation, who shall fully apprise the juvenile of his rights and of the consequences of such consent. Such consent shall be deemed a waiver of a trial by jury. June 25, 1948, c. 645, 62 Stat. 857.

' § 5034. If the court finds a juvenile to be a delinquent, it may place him on probation for a period not exceeding his minority, or commit him to the custody of the Attorney General for a like period.

'Such commitment shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation.

'The Attorney General may designate any public or private agency or foster home for the custody, care, subsistence, education, and training of the juvenile during the period for which he was committed. * * *'

Several federal courts have defined the nature of proceedings initiated under this act and the status of those who have been adjudged juvenile delinquents within its provisions. Invariably, the courts which have considered those questions have determined that an adjudication of delinquency under the act does not amount to a conviction of a crime, but that the proceedings result only in an adjudication of a status to which no criminal stigma is attached. (United States v. Flowers, D.C.W.D.Tenn.1963, 227 F.Supp. 1014; United States v. Morales, D.C.D.Mont.1964, 233 F.Supp. 160; United States v. Fotto, D.C.S.D.N.Y.1952, 103 F.Supp. 430.)

In Fagerstrom v. United States, 8 Cir. (1963), 311 F.2d 717, the court said:

'To be adjudged a juvenile delinquent and committed to the custody of the Attorney...

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  • State v. LaMunyon, 71985
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    • January 26, 1996
    ...with "criminal history." It is well established that a juvenile adjudication is not a "criminal conviction." See State v. Fountaine, 196 Kan. 638, 414 P.2d 75 (1966) (construing Federal Juvenile Delinquency Act [FJDA] in harmony with the predecessor to the Code; juvenile adjudication under ......
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    • July 12, 1967
    ...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 Cr......
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    ...that allocution occurred prior to the introduction of such evidence. What was said by this court in the recent case of State v. Fountaine, 196 Kan. 638, 414 P.2d 75, is particularly apropos to the factual situation 'We need not decide whether the explanation given defendant by the court can......
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