State v. Richardson
| Decision Date | 06 March 1965 |
| Docket Number | No. 44041,44041 |
| Parties | STATE of Kansas, Appellant, v. Raymond Walton RICHARDSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In a proceeding under K.S.A. 60-1507 a prisoner in custody under sentence of a court of general jurisdiction claimed the right to be released upon the ground that the sentence was imposed in violation of the Constitution of the United States. The trial court, after granting the petitioner an evidentiary hearing on his motion, vacated and set aside the sentence which it originally imposed, and ordered the petitioner's discharge from imprisonment. On appeal by the State it is held: The trial court erred in holding (a) that the arraignment and preliminary hearing in the magistrate court was a critical stage of the criminal proceeding, and that an attorney should have been appointed for the indigent defendant prior thereto; and (b) that the indigent defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court, all as more particularly set forth in the opinion.
Richard H. Seaton, Asst. Atty. Gen., argued the cause, Robert C. Londerholm, Atty. Gen., with him on the brief, for appellant.
Charles E. Wetzler, Prairie Village, argued the cause, Robert F. Bennett and Robert F. Lytle, Prairie Village, with him on the brief, for appellee.
This is an appeal by the State in a proceeding initiated pursuant to K.S.A. 60-1507, wherein a prisoner in custody under sentence of a court of general jurisdiction claimed the right to be released upon the ground that he was denied due process of law and was unjustly, unlawfully and illegally confined in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The trial court after granting the petitioner an evidentiary hearing, vacated and set aside the sentence which it originally imposed, and ordered the petitioner's discharge from imprisonment.
The underlying question in the case is whether the petitioner's constitutional rights have been violated.
The provisions of 60-1507, supra, are new to Kansas law, having been enacted as a part of the Laws of 1963, Chapter 303, commonly referred to as the new code of civil procedure, which became effective January 1, 1964. It follows the language of a federal statute, 28 U.S.C. § 2255 (originally enacted in 1948). It may therefore be said the body of federal law which has developed under § 2255, supra, should be given great weight in construing the provisions of 60-1507, supra, in the Kansas law. (See, Webb v. Board of Com'rs of Butler Co., 52 Kan. 375, 34 P. 973; and Hanson v. Hoffman, 150 Kan. 121, 91 P.2d 31.)
The provisions of K.S.A. 60-1507(a) read:
Unless the motion and the files and records of the case conclusively show that a prisoner is entitled to no relief, section (b) of 60-1507, supra, directs the trial court which imposed the sentence to grant a prompt hearing upon the motion, determine the issues and make findings of fact and conclusions of law with respect thereto.
To implement proceedings under 60-1507, supra, this court on the 16th day of October, 1964, promulgated Rule No. 121 (). Procedurally this rule is quite extensive in that it embodies the substance of many federal decisions determined pursuant to § 2255, supra, of the federal code.
Prior to the adoption of the foregoing rule, J. Richard Foth and Arthur E. Palmer wrote an article entitled 'POST CONVICTION MOTIONS UNDER THE KANSAS REVISED CODE OF CIVIL PROCEDURE' published in 12 Kan.L.Rev. 493 (May, 1964). This article is well written and should serve to enlighten the legal practitioner coming to grips with 60-1507, supra, for the first time.
The provisions of 60-1507, supra, may be invoked only by one in custody claiming the right to be released. Section (a) authorizes the prisoner by a motion to make a collateral attack upon the judgment in the court where it was rendered. The motion to vacate is a civil remedy. It is to be noted Rule No. 121(a) states:
While the motion attacks the judgment in the criminal case it is separate from the criminal case and is, in fact and theory, a new case. The motion should be given a separate docket number and be captioned in a manner which will describe the new case and not cause confusion with the previous criminal case.
In Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), it was said the motion under 28 U.S.C. § 2255, attacks a judgment in a criminal case, but in fact and in theory it is a new case; that since a proceeding under this section is in the nature of a civil action, regular pretrial procedure could be utilized.
In the case presently before the court the motion was filed in the original criminal action as docketed in the district court of Johnson County, Kansas, but the sentencing court considered it an independent civil action. Under the circumstances, we do not regard this variance to be fatal. We will consider the motion as having initiated an independent civil action to which the rules of civil procedure apply.
Rule No. 121(h) of the Supreme Court regarding presence of the prisoner states:
'PRESENCE OF PRISONER.
The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.'
The foregoing rule regarding the presence of the prisoner is substantially the decision of the United States Supreme Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), under § 2255, supra, of the federal code.
While the motion in this case was heard by the sentencing court prior to the promulgation of Rule No. 121 of the Supreme Court, it may be said the trial court conducted the proceeding in substantially the manner outlined by Rule No. 121. The prisoner was granted an evidentiary hearing at which he was present and testified. It was apparent the motion presented substantial questions of law and triable issues of fact, by reason of which the trial court appointed counsel to assist the movant, an indigent person. (See, Rule No. 121[i]; and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 [1963].) The appointment of counsel to represent the indigent prisoner was no doubt designed by the sentencing court to meet the standards of a 'fair' hearing set out in Townsend.
On the issues raised by the prisoner in this case only a full and fair post conviction hearing in the sentencing court would render it unnecessary to relitigate the issues in full, first in a state action and again in a federal forum.
In speaking of the proceeding conducted pursuant to § 2255, supra, of the federal code, the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), said:
* * *' (p. 22, 83 S.Ct. p. 1081.)
On this point see K.S.A. 60-1507(c) of the Kansas code and Rule No. 121(d) of this court.
We shall turn now to the proceedings before the trial court in the instant case.
The petitioner alleged in his motion to vacate the sentence that he was unjustly, unlawfully and illegally detained by the superintendent at the Kansas State Penitentiary, Lansing, Kansas. He alleged that agents of the sheriff and county attorney of Johnson County, Kansas, told him he was guilty of forging and falsely offering numerous checks which were in the possession of the county attorney's office, and which were written and tendered in violation of the laws of the state of Kansas; that the petitioner was further advised unless he entered a plea of guilty to one of the check charges, he would undoubtedly be sentenced for a period of 30 to 50 years in the state penitentiary as an habitual by reason of two prior felony convictions. The petitioner further alleged he was additionally informed that unless he entered a plea of guilty, his wife, who was a minor at the time, would be prosecuted and imprisoned.
He alleged that after a long period of interrogation he finally agreed to plead guilty to one of the charges against him upon the promise that charges would not be brought against his wife,...
To continue reading
Request your trial
-
Barnes v. State
...*' (p. 366, 207 A.2d p. 809.) As the criminal law becomes more settled, guidelines will gradually emerge. This court in State v. Richardson, 194 Kan. 471, 399 P.2d 799, recognized that 60-1507, supra, was new to Kansas law and followed the language of a federal statute. (28 U.S.C. § 2255, o......
-
Fischer v. State
...K.S.A. 60–1507 in 1963 as part of what was then the new Code of Civil Procedure. L. 1963, ch. 303, sec. 60–1507. State v. Richardson, 194 Kan. 471, 472, 399 P.2d 799 (1965). One of the statute's more sweeping changes was to shift the burden of prisoner postconviction litigation to all court......
-
Albright v. State
...and is governed by the rules of civil procedure. Supreme Court Rule 183(a) ( 2010 Kan. Ct. R. Annot. 255); State v. Richardson, 194 Kan. 471, 472–73, 399 P.2d 799 (1965). Accordingly, the procedure for appeal of a judgment in a 60–1507 proceeding is found in K.S.A. 60–2103(a), which governs......
-
Easterwood v. State
...civil decisions involving criminal issues retroactively, by noting that K.S.A. 60-1507 proceedings were held in State v. Richardson, 194 Kan. 471, 472-73, 399 P.2d 799 (1965), to be a civil action (citing Heflin v. United States, 358 U.S. 415, 3 L. Ed.2d 407, 79 S. Ct. 451 [1959]). Richards......