State v. Washington
| Decision Date | 04 March 1967 |
| Docket Number | No. 44464,44464 |
| Parties | STATE of Kansas, Appellee, v. Anthony WASHINGTON, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action where counsel is appointed by the district court to represent an accused who is sentenced to imprisonment on his pleas of guilty, a record showing full compliance with the statutory requirements of K.S.A. 62-1304 is prima facie evidence to establish that the primary right of the accused to a trial by a jury was safeguarded.
2. Generally speaking, a preliminary examination has not been held to be a critical stage in a criminal proceeding and a waiver of the preliminary examination may be made by an accused without the appointment of counsel.
3. A district court is authorized to accept pleas of guilty where the defendant advised the court he understood the nature of the charges pending against him and that he had discussed the consequences of his pleas with his attorney.
4. The record in a criminal proceeding is fully examined, and it is held: (1) The appellant knowingly entered his pleas of guilty to the charges of burglary in the second degree and grand larceny, which were freely and voluntarily made in open court after he had discussed his case with his attorney who advised him of his rights and fully and fairly represented him; (2) the district court had jurisdiction to accept the appellant's pleas of guilty and to impose sentence in accordance with law, and (3) no constitutional rights of the appellant were infringed or violated in any respect by the district court.
A. H. Harding, Independence, argued the cause and was on the briefs, for appellant.
Monte K. Heasty, Asst. County Atty., Coffeyville, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, and B. D. Watson, County Atty., Independence, were with him on the briefs, for appellee.
The appellant, Anthony Washington, Jr., has appealed from his conviction of burglary in the second degree (K.S.A. 21-520), and larceny in connection with the burglary (K.S.A. 21-533). He was convicted upon his pleas of guilty on July 7, 1965, and was sentenced to confinement in the Kansas State Penitentiary for a term of not less than five years nor more than ten years. (K.S.A. 21-523, 21-534 and 62-2239.)
On June 23, 1965, the appellant, together with three other persons, was charged in a complaint filed in the Court of Independence, Montgomery County, with breaking and entering in the nighttime the Debo Liquor Store, located in Independence, and taking and carrying away various bottles of alcoholic liquor of the approximate value of $139.18. The burglary and larceny were alleged to have occurred on June 22, 1965. A warrant was issued on the complaint and the appellant was arrested on June 25, 1965. He was taken before the magistrate of the Court of Independence on that same day. The court set the preliminary hearing for the appellant on July 6, 1965, and in default of bond, he was committed to the Montgomery County jail.
Thereafter, and on June 29, 1965, the appellant appeared in the Court of Independence, in person, but without counsel to represent him, and waived his right to a preliminary hearing. Whereupon, the court bound the appellant over to the district court of Montgomery County to stand trial on the charges alleged against him.
On July 6, 1965, the appellant appeared without counsel in the district court for arraignment on an Information charging him with the burglary of the liquor store in the nighttime and the theft of certain alcoholic liquor of the value of $139.18. The district court made full and detailed explanation to the appellant of the nature of the charges and the penalties provided by law in the event of his conviction, and, upon finding the appellant was indigent, and acting pursuant to K.S.A. 62-1304, the district court appointed Mr. Laurence McVey a practicing attorney in Independence, to represent the appellant. The cause was continued to afford the appellant full opportunity to confer with his attorney.
Thereafter, and on the following day, July 7, 1965, the appellant and his attorney appeared before the district court for arraignment, and the record discloses the following:
'Mr. Washington, yesterday you were before the court; you were advised by the court as to the nature of the charge in this information and informed of some of your rights in connection with it, especially your right to have an attorney represent you in the case and upon a showing of indigence the court appointed an attorney who was Mr. Laurence McVey, who is present here and representing you. 'Have you discussed this matter with your attorney, Mr. McVey?
'
The district court inquired of the appellant whether he had any reason to give or cause to show why the sentence of the court should not be pronounced at that time, and he replied. 'No sir.' The district court then imposed sentence in accordance with K.S.A. 21-523, 21-534 and 62-2239.
On September 5, 1965, the appellant wrote the district court to the effect he should have been charged with burglary in the third degree since the place burglarized was a business place which was not occupied by anyone or used for sleeping quarters, and the time element was after midnight. The appellant stated he was aware he had 'the privilege of filing a motion to vacate and such forms, which are prescribed for this purpose, are issued here in the prison at Lansing,' and that he planned 'to file forms of this nature very soon.'
On October 11, 1965, the appellant filed his notice of appeal to this court and his specifications of points of error, pro se; his affidavit and petition to proceed in forma pauperis, and proof of service. Specifications of error made by appellant, and which he stated were to be relied upon in presenting the appeal, are:
'(1) Appellant was denied the right to trial by jury through error on the part of the Court in accepting a cohersed (sic), invalid plea of guilty.
'(2) Trial Court lacked competent jurisdiction inasmuch as the plea, as it is said, was not a knowing, voluntary waiver of before said rights.
'(3) Trial Court was a party to, and committed fatal predjucial (sic) error, through its error in not rectifying the fact that appellant's rights under Constitutional Amendment, Article VI were not accorded him in fact.
'(4) Trial Court, was (in) error through its failure to accord Appellant the protections of the VI and XIV Amendments to the Constitution of the United States.'
In preparing and filing his papers to perfect this appeal, the appellant apparently overlooked Prefatory Rule No. 1 of this court (194 Kan. XII) since he failed to file a request for the appointment of counsel to represent him in presenting this appeal. In any event, appellant's lack of counsel was brought to the attention of the district court and on October 18, 1966, it appointed Mr. A. H. Harding, a member of the Montgomery County Bar, to represent the appellant, and permitted the appellant to proceed with his appeal in forma pauperis.
As indicated, the appellant's specifications of error charge the district court with denying him the right to trial by jury by accepting 'a cohersed (sic), invalid plea of guilty,' when it lacked 'competent jurisdiction' by reason of its being 'a party to, and committed fatal predjucial (sic) error,' in not according him the protection of his constitutional rights as prescribed by 'the VI and XIV Amendments to the Constitution of the United States.'
We think it obvious from the foregoing, the district court protected the appellant's constitutional rights at all times and gave him every opportunity to make objection to any matter which previously had transpired, including matters relating to his arrest and the waiving of his right to a preliminary examination. The record clearly discloses the appellant entered his pleas of guilty freely and voluntarily after he had discussed his case with his attorney who advised him of his rights, and after the district court had advised him of the nature of the charges pending against him and the penalty prescribed in the event of his conviction.
Dismissing the fact the appellant, in open court upon inquiry of the district judge, stated he had no complaint that counsel was not appointed to represent him prior to or at the time he waived his right to a preliminary examination, this court has consistently...
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Brown v. State
...with counsel at such time does not constitute reversible error, absent a showing of prejudice to his substantial rights. (State v. Washington, 198 Kan. --, 424 P.2d 478; State v. Peterson, 198 Kan. -, 424 P.2d 552 (both decided this day); Lee v. State, 197 Kan. 371, 416 P.2d 285; Witt v. St......
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Wright v. State
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McCarther v. State, 46605
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State v. Harris, 65392
...to K.S.A. 22-3501, cannot exist simultaneously. In support of its mutual exclusion argument, the State cites State v. Washington, 198 Kan. 275, 280-81, 424 P.2d 478 (1967), which refers to Rule 121(c)(3) (197 Kan. lxxiv). The rule at that time stated: "[A] motion to vacate, set aside or cor......