State v. Patterson, 76684

• Decision Date: 30 May 1997
• Docket Number: No. 76684,76684
• Citation: 939 P.2d 909,262 Kan. 481
• Parties: STATE of Kansas, Appellee, v. Franklin E. PATTERSON, Appellant.
• Court: Kansas Supreme Court

Page 909

939 P.2d 909

262 Kan. 481

STATE of Kansas, Appellee, v. Franklin E. PATTERSON, Appellant.

No. 76684.

Supreme Court of Kansas.

May 30, 1997.

Syllabus by the Court

1. A defendant who collaterally challenges the use of a prior conviction to enhance his or her sentence has the burden to show that he or she did not have the benefit of counsel at the prior conviction and, absent such a showing, the enhanced sentence is presumed to be regular and valid.

2. The record on appeal is examined, and it is held that the district court did not err in (1) finding the defendant's sentence is not illegal and (2) denying without a hearing the defendant's post-conviction motion challenging the enhancement of his sentence.

Hazel Haupt, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

ALLEGRUCCI, Justice.

Franklin E. Patterson appeals from the district court's denial without a hearing of a post-conviction, pro se motion that challenged the legality of his sentence. He raises a question about the validity of prior convictions that formed the basis for enhancement of his sentence under the Habitual Criminal Act. This is the second post-conviction, pro se motion by Patterson to challenge the enhancement of his sentence. See State v. Patterson, 257 Kan. 824, 896 P.2d 1056 (1995).

In 1987, Franklin Patterson was convicted by a jury of first-degree murder, aggravated kidnapping, and aggravated robbery. The State sought imposition of the Habitual Criminal Act, K.S.A.1984 Supp. 21-4504. In support of its motion, the State proposed to

"show the Court that the defendant herein, FRANK E. PATTERSON, has been previously convicted of the felony of Burglary, in Circuit Court Cause No. 5358 and of Grand Larceny, in Circuit Court Cause No. 5948, both in the 2nd District, Bolivar County, Mississippi; and of First Degree Robbery, on June 24, 1969 in Case No. CR5664 in Sedgwick County, Kansas."

The journal entry states that evidence of these prior convictions was presented to the sentencing court, the State's motion for imposition of the Habitual Criminal Act was sustained, and Patterson was sentenced to tripled terms as provided in the Act. He was sentenced to imprisonment for three life terms for murder, three life terms for aggravated kidnapping, and 45 years to three life terms for aggravated robbery. The sentences for aggravated kidnapping and aggravated robbery were to run concurrent with one another and consecutive to the sentence for murder. On direct appeal, Patterson's conviction of aggravated kidnapping was reversed, and the sentence for that conviction was vacated. State v. Patterson, 243 Kan. 262, 755 P.2d 551 (1988).

The district court denied a subsequent post-conviction, pro se motion by Patterson that challenged the legality of his sentence. On appeal, this court concluded that the result of application of the habitual criminal provision of 21-4504 to a life sentence was to impose three consecutive life sentences. Patterson had argued that three times life is life. The court rejected Patterson's argument that the statute was ambiguous and that life sentences were excepted from enhancement. 257 Kan. at 828-29, 896 P.2d 1056.

After this court's most recent opinion on Patterson's sentences was filed in June 1995, Patterson filed an "Ex parte Motion For A Nunc Pro Tunc Order." It is file-stamped November 29, 1995. The motion was denied by the district court, and Patterson took this appeal from the district court's action.

In his November 1995 motion, Patterson claimed, for the first time, that his sentence was illegal because the State had not established that he had been represented by counsel or had waived counsel for the prior convictions used to support imposition of the Habitual Criminal Act. He also argued that the State showed only two prior convictions, whereas three are required if sentences are to be tripled.

In February 1996, the district court denied the motion. The order stated, in part:

"There are no appearances.

....

"1. The State presented sufficient competent evidence of the defendant's prior convictions to justify the imposition of the Habitual Criminal Act.

"2. The defendant's two prior convictions are sufficient to triple his sentence under the Habitual Criminal Act. See K.S.A. 21-4504(b).

"3. The defendant's sentence is not illegal. See State v. Thomas, 239 Kan. 457, Syl. 4, 720 P.2d 1059 (1986)."

Patterson filed a timely notice of appeal from the court's order. On appeal, he has not pursued the argument that two prior convictions will not support imposition of the Habitual Criminal Act. "An issue which is not briefed is deemed abandoned." State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993). He now claims the district court committed error in denying, without a hearing, his motion challenging the prior convictions which were the basis for the imposition of the Habitual Criminal Act.

With regard to jurisdiction, Patterson would have this court note that the district court treated his pro se motion as a motion to correct an illegal sentence. K.S.A. 22-3504 authorizes correction of an illegal sentence at any time. Patterson relies on Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995), for the proposition that this court can entertain the appeal as that from denial of a motion to correct an illegal sentence or as a K.S.A. 60-1507 petition. K.S.A. 60-2101(b) provides, in part: "The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court ... in order to assure that any such act, order or judgment is just, legal and free of abuse."

On the question of representation on prior convictions, Patterson relies primarily on State v. Duke, 205 Kan. 37, Syl. 3, 468 P.2d 132 (1970):

"A record of prior felony conviction which is silent or ambiguous concerning the presence of counsel or the valid waiver thereof is presumptively void, and it alone cannot form the basis for establishing a valid conviction as an element of K.S.A. 21-2611 or for imposing enhanced punishment under the habitual criminal act (K.S.A.21-107a)."

Patterson contends that the record in the present case fails to establish that he was represented or that he waived representation "in the cases used to enhance this sentence." Patterson does not assert that he was unrepresented or that his right to counsel was violated. Thus, he does not attack his sentence on the ground that prior convictions relied upon to invoke the Habitual Criminal Act are invalid for lack of counsel. The actual ground upon which he attacks his sentence is that the record does not affirmatively show that he was represented when convictions relied upon to invoke the Habitual Criminal Act were obtained.

The record contains documents pertaining to the prior Kansas conviction that was used for enhancement. A copy of the June 1969 journal entry states that Patterson was represented by counsel at trial and sentencing. A copy of the appearance docket shows that his counsel had been appointed soon after Patterson was taken into custody so that he also was represented during pretrial proceedings. The Kansas conviction is not an issue.

The record does not include documentation of the convictions from Bolivar County, Mississippi. The transcript of the sentencing proceeding in the present case, which is in the record, contains references to State's Exhibit Number 3, which "appears to be some packet of papers from the State of Mississippi." When it was offered into evidence by the State, Patterson's counsel objected on the ground that the information was hearsay. The district court, however, found that Exhibit 3 satisfied the requirement of K.S.A. 60-465 for foreign state records and overruled the objection. There is nothing more in the transcript about the Mississippi proceedings.

On appeal, counsel for Patterson states that she was advised by the district court that Exhibit 3 could not be located in the court file. Thus, there is nothing in the record on appeal that shows whether Patterson was represented by counsel in the Mississippi court. This is quite different from a situation in which the evidence of prior convictions introduced by the State at the time of sentencing did not show that defendant was represented when the prior convictions were obtained.

Patterson takes the position that the inadequate record in this case is the State's problem. He reasons that the State has the burden of proving that he had a prior felony conviction or convictions in Mississippi at which time or times he was represented by an attorney. The State's failure to satisfy its burden, according to Patterson's theory, precludes use of the foreign conviction(s) as a basis for imposing enhanced punishment. Patterson argues that "the district court should have convened a hearing [on his motion] at which time it could have properly been ascertained whether the State had truly met its burden of proof in establishing the prior felony convictions."

The State contends that Patterson is mistaken in assigning the burden of proof to it in this post-conviction proceeding. Its argument is built on several propositions. The first is that a presumption of validity attached to the prior convictions when the district court determined that defendant had prior convictions for the purpose of enhancing his sentence. The second is that the presumption of validity clings to the prior convictions so that in a collateral attack the defendant bears the burden of overcoming the presumption of validity. The State relies on the combined teachings of Parke v. Raley, 506 U.S. 20, 29-30, 113 S.Ct. 517, 523-24,...