State v. Kelly, 47097

• Decision Date: 03 November 1973
• Docket Number: No. 47097,47097
• Citation: 515 P.2d 1030,213 Kan. 237
• Parties: STATE of Kansas, Appellee, v. R. O. KELLY, Appellant.
• Court: Kansas Supreme Court

Page 1030

515 P.2d 1030

213 Kan. 237

STATE of Kansas, Appellee, v. R. O. KELLY, Appellant.

No. 47097.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. The statutory requirement that the defendant be present when a sentence of imprisonment is pronounced is for the benefit of both the state and the defendant. In a misdemeanor case where both parties waive the requirement the court may in its discretion impose sentence without the presence of the defendant.

2. A defendant who retains counsel to represent him in a misdemeanor case, leaves the jurisdiction while free on bond, advises counsel that he does not intend to appear at trial, and who executes and furnishes to counsel an appeal bond, has effectively waived his right to be personally present at trial and at the imposition of sentence. Under these circumstances the court has jurisdiction to impose sentence where the defendant appears only by counsel.

3. A jail sentence imposed under the circumstances recited in paragraph 2 above is not void, and may not be set aside on motion of the defendant made many years later on the sole ground that he was not personally present when sentence was imposed.

4. Under the circumstances set forth in the opinion the purported resentencing of defendant by the Sedgwick county court of common pleas was a nullity, and the attempted appeal from the resentencing was properly dismissed.

A. J. Focht, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause, and Paul V. Smith, Wichita, was on the brief for appellant.

Keith Sanborn, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Stephen M. Joseph, Wichita, were with him on the brief for appellee.

FOTH, Commissioner:

In this case R. O. Kelly, the appellant, is seeking to set aside a 1960 conviction he suffered in the Sedgwick county court of common pleas. He wants, he says, a trial de nove. His current demand to face his accusers, asserted for the first time more than a decade after his conviction, is the substance of this law suit.

Kelly's travails began on July 28, 1960, when his journeys as a purveyor of an alleged cure for baldness brought him to Wichita. There certain of his solicitations of public patronage apparently caught the watchful eye of Sedgwick county officialdom; he was charged in the court of common pleas with false advertising, a misdemeanor under the Kansas food, drug and cosmetic act (now K.S.A. 65-655 et seq.) He was arrested the same day and taken to the Sedgwick county jail, where he immediately secured the services of a professional bondsman.

The bondsman, Kelly says, woulnd't make bond for him as a non-Kansan unless he had local counsel to represent him. Accordingly he retained the late C. B. Moy, then a practicing attorney in Wichita. Kelly thereupon appeared before the court, accompained thereupon appeared before the court, accompanied plea of not guilty. Trial was set for August 15, 1960, and Kelly's appearance bond was fixed at $500.

That day Kelly signed a number of papers for his attorney and bondsman which he assumed were 'regular bond forms.' Among them, it appears, was an appeal bond. He was released from custody and left town the same day. He went home to Arizona, and was not to return to Wichita until some twelve years later.

In the meantime, the case of State of Kansas v. Kelly was pursuing its routine course in the court of common pleas: the trial date was continued by the court from August 15 to August 29, 1960; on the latter date a bond forfeiture was first ordered and later, when attorney Moy appeared, was set aside; the case was set for September 1, 1960, 'for disposition.'

On August 31, 1960, the case came before the then judge, George M. Ashford. He filled in a printed journal entry form to show the appearances of counsel on behalf of the state and defendant; he did not strike from the form the printed recitation of the defendant's personal appearance. Judge Ashford also penned in that 'It is stipulated between deft. & State that the state's evidence would establish a prima facie case of guilt as charged.'

On the basis of this stipulation Judge Ashford found the defendant Kelly guilty, and sentenced him to 60 days in the county jail and a fine of $300, the maximum penalty provided by law. He fixed an appeal bond of$500, and granted the defendant a ten day stay in which to perfect an appeal.

Kelly's appeal was duly taken to the district court, but there, on September 19, 1960, Kelly's motion to dismiss his appeal with prejudice was sustained. The journal entry sustaining his motion and remanding the case to the court of common pleas for execution of the sentence there imposed was approved by Kelly's attorney. A commitment order for Kelly was later issued by the court of common pleas and remained outstanding and unexecuted over the years.

There the matter rested for almost twelve years until, on May 10, 1972, Kelly filed a motion in the court of common pleas to set aside the 1960 judgment and sentence. He alleged that 'said judgment and sentence are illegal and void in that the defendant was not personally present in court at the time of said judgment and sentence as required by law.' He also asked to withdraw the stipulation, recorded by the court of common pleas and quoted above, because it was made 'without his authority, and without his knowledge or consent.'

Attached to the motion was Kelly's affidavit setting out the 1960 events basically as outlined above. At a hearing before the court of common pleas on May 30, 1972, Kelly was present and testified, repeating the substance of his affidavit.

His testimony did, however, add two significant details:

First, he did in fact sign the appeal bond as well as the appearance bond, although he insisted that he did all his signing at one time, on July 28, 1960.

Second, his Wichita attorney called him 'two or three times' concerning the case, and advised him of the upcoming trial date. Kelly's response was that he did not intend to return to Wichita-his Arizona lawyer had told him it would be just like ignoring a traffic ticket. Kelly testified that Moy told him if he didn't show up 'they would come after me,' but 'He didn't say I would be convicted or anything like that.'

Kelly's motion to vacate was heard by Robert L. Morrison, judge of the court of common pleas, on May 30 and June 5, 1972. The factual issue to be determined was whether Kelly was or was not present at the time sentence was imposed in 1960. Judge Morrison drew on his own experience on the bench of that court, dating back to the first part of 1961. He found that the printed recitation of the defendant's appearance shouldn't be given much-and certainly not controlling-weight; it had not been Judge Ashford's practice to strike the recitation when the defendant did not appear. Choosing, rather, to believe Kelly's affidavit and sworn testimony Judge Morrison found that Kelly had not been present when sentence was pronounced.

While the state makes some argument that the record contained in the 1960 journal entry is conclusive as to the facts recited, we think Judge Morrison was amply justified in refusing to accept that record at face value. If it did not speak the truth, he had an affirmative duty to make it do so. State v. Lyon, 207 Kan. 378, 485 P.2d 332, Syl. 2; Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, Syl. 5; Tafarella v. Hand, 185 Kan. 613, 617-618, 347 P.2d 356.

Judge Morrison went on to say:

'. . . The Court finds that trial of the case on August 31, 1960, and the conviction thereon, was valid but that the defendant was not present and sentence of imprisonment should not have been imposed in his absence.'

He accordingly set aside the original sentence in its entirety. He refused, however, to set aside the stipulation or the finding of guilt. Instead, regarding the defendant as one who had previously been found guilty but had not yet been sentenced, he proceeded to impose a fine of$300.

Kelly promptly appealed to the district court from the new sentence imposed. There he took the position that he had appealed from a judgment and sentence imposed in 1972, and that like any other appellant from the court of common pleas he was entitled to a trial do nove under K.S.A. (now 1972) Supp. 22-3610. The district court, after hearing arguments, took the matter under advisement. On July 5, 1972, in a journal entry which first reviewed the history of the case, the district court reached the following result:

'This Court finds that the motion filed by the defendant in the Court of Common Pleas in 1972 amounts to an appeal from the judgment, verdict, and sentence of the Court of Common Pleas given in the year 1960, and, in effect, this present appeal to the District Court amounts to an appeal in which the defendant seeks a trial de novo of a case tried in the year 1960 which appeal was dismissed by the defendant.

'It is this Court's finding and judgment that the Court of Common Pleas in 1972 had no jurisdiction nor authority to make any ruling in this case which was tried in the year 1960 and the appeal therefrom having been dismissed by the defendant in 1960.

'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that the purported appeal of the defendant to the District Court from the Court of Common Pleas is dismissed by the Court. This case is remanded to that Court for further proceedings in accordance herewith.'

The district court orally elaborated on its judgment as follows:

'THE COURT: It is this Court's opinion that this Court has no jurisdiction in this matter as of today.

'Here's what I've tried to do: on the 21st day of June, 1972, I said that I found that Morrison did not change Ashford's verdict, judgment, or finding of guilty and I sort of left the matter of whether some other Court should consider the fact that Morrison had any authority to change the sentence. I sort of left that up in the air. Now, what I'm deciding today is, one, that Morrison not...