Tafarella v. Hand, 41432

• Decision Date: 12 December 1959
• Docket Number: No. 41432,41432
• Parties: Leo TAFARELLA, Appellee, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellant.
• Court: Kansas Supreme Court

Page 356

347 P.2d 356

185 Kan. 613

Leo TAFARELLA, Appellee, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellant.

No. 41432.

Supreme Court of Kansas.

Dec. 12, 1959.

Rehearing Denied Jan. 27, 1960.

Syllabus by the Court

The record in a habeas corpus proceeding examined and, following Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225; Goetz v. Hand, 185 Kan. 788, 347 P.2d 349; Tibbett v. Hand, 185 Kan. 770, 347 P.2d 353 it is held that under the facts, conditions and circumstances, set forth at length in the opinion, the trial court erred (1) in holding that the district court of Crawford County, Kansas, was without jurisdiction to accept the petitioner's voluntary plea of guilty to a charge of first degree murder because of failure to fully comply with the provisions of G.S.1949, 62-1304, and (2) in granting a writ on that basis.

Charles N. Henson, Jr., Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., and J. Richard Foth, Asst. Atty. Gen., and John A. Emerson, Asst. Atty. Gen., were with him on the briefs for appellant.

Gerald L. Goodell, Topeka, argued the cause, and Lester M. Goodell, Margaret McGurnaghan, Marlin S. Casey, Raymond Briman, and Thomas R. Sewell, Topeka, were with him on the briefs for appellee.

PARKER, Chief Justice.

This is a habeas corpus proceeding in which the warden of the Kansas state penitentiary appeals from an order and judgment of the district court of Leavenworth County granting the petitioner, Leo Tafarella a writ of habeas corpus and directing his release from the warden's custody.

There is no dispute respecting the basic facts responsible for petitioner's detention. According to the record presented he was charged by information in the district court of Crawford County with the crime of first degree murder, jointly with Roy Ramsey and James Samuel George. When his case was called for trial on September 26, 1949, he was present in court without counsel and announced ready for trial. Thereafter he was advised by the court that it could and would appoint counsel for him. Upon receipt of this informaction he stated he did not desire counsel and executed a verified written waiver before the clerk of the court. In this instrument he stated that with full knowledge of his right to court appointed counsel he was giving the court to understand he did not desire to be so represented and requested the court to accept his plea of guilty to the information charging him with murder in the first degree, without the appointment of counsel by the court. Thereupon the state offered in evidence a statement, signed by petitioner, admitting his part in the crime as charged by the information filed against him. Petitioner read the statement and admitted it was true, whereupon it was admitted in evidence with his permission. He was then informed by the district judge that his plea of guilty of murder in the first degree, as charged in the information, was accepted by the court. Thereafter he was required to stand for sentence and inquiry was made of him as to whether there was any legal and lawful reason why judgment and sentence should not be pronounced against him upon his plea of guilty and, upon no reason being alleged or shown, he was sentenced by the court to confinement in the state penitentiary for life at hard labor in accord with the statute.

On November 10, 1958, more than nine years after the foregoing conviction and sentence, petitioner filed a petition for a writ of habeas corpus in the district court of Leavenworth County. For purposes pertinent to the disposition of issues raised on this appeal it may be said that pleading alleges in substance that petitioner is being held in custody by the respondent in denial of 'Due Process of Law,' because of the trial court's failure to comply with the requirements of Laws of 1941, Chapter 291, Section 1, now G.S.1949, 62-1304, by reason of which such court lost its jurisdiction to render a valid judgment and sentence against him for the crime of murder in the involved case.

On November 15, 1958, the Hon. L. M. Resler, who, it is to be noted, is the same district judge who rendered the judgment in the petitioner's case on September 26, 1949, entered an order nunc pro tunc, correcting the journal entry in such case, which reads:

'Now on this 15th day of November, 1958, comes on for hearing the Motion of plaintiff for an Order entering judgment nunc pro tunc in this action as it pertains to defendant, Leo Tafarella. The State was represented by and through J. John Marshall, County Attorney in and for Crawford County, Kansas. There were no other appearances. The Court finds that adequate notice was given to the said Leo Tafarella by registered mail. The Court also finds from the records of the Court and the minutes of the trial judge in his docket, that there was a judgment and sentence duly pronounced and rendered in this action against the defendant, Leo Tafarella, on the 26th day of September, 1949, whereby it was ordered, adjudged and decreed that defendant, Lew Tafarella, be sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a term of life on his plea of guilty to first-degree murder but that through an oversight or omission of the then County Attorney, certain findings were omitted from the Journal Entry filed. This Court further finds that there should have been a finding in the Journal Entry that although defendant, Leo Tafarella, expressly waived Court appointed counsel, this Court also found that it would not be to the said defendant, Leo Tafarella's advantage to have Court appointed counsel over his objection, pursuant to G.S.1935, 62-1304, as amended.

'It Is, Therefore, Ordered that the Journal Entry of Judgment and sentence against defendant, Loe Tafarella, be corrected to cure this defect and that the following finding of the trial Court be inserted therein and made a part thereof, as though set out originally therein, to-wit:

'The Court also finds that the appointment of counsel by the Court over defendant Leo Tafarella's written waiver and objection would not be to his, the said Leo Tafarella's advantage.'

On the next day, i. e., November 16, 1958, the respondent, warden, answered the petition for writ of habeas corpus. It suffices to say that in this answer he denied that petitioner's restraint was illegal or in violation of law, alleged that petitioner was legally and lawfully confined in his custody under the September 26, 1949, judgment and sentence; and prayed that the writ be denied.

With issues joined as related the district court of Leavenworth County heard the cause and rendered judgment granting the writ. It may be said that, for all purposes pertinent to the issues involved on appellate review, such judgment, as reflected by the journal entry of judgment, reads:

'(1.) That on the 26th day of September, 1949, in the District Court of Crawford County, Kansas, in Case No. 3443, wherein the State of Kansas was Plaintiff and Leo Tafarella and others were Defendants, the defendant in said action, and the petitioner herein, entered a plea of guilty to a charge of first degree murder, and pursuant to said plea of guilty was sentenced by said Court to the Kansas State Penitentiary for the remainder of his natural life.

'(2.) The Court further finds that in said foregoing criminal action in said District Court of Crawford County, Kansas, the judgment, sentence and commitment of the defendant to the Kansas State Penitentiary, each was and is a nullity and wholly void and of no effect for the reason that the Court was without jurisdiction to receive and accept the said plea of guilty by reason of failure to comply with the provisions of R.S. 62-1304 of the Revised Statutes of Kansas, 1949, in that the Court failed to find and incorporate in the journal entry of judgment that the appointment of counsel over the objection of the defendant in said case would not be to his advantage, and, in addition, the Court further finds from Petitioner's Exhibit A attached to his petition, and a statement by counsel for the respondent that he was in possession of the same information as stated in said Petitioner's Exhibit A, that the court reporter, Pete Kelly, made shorthand notes at the time said plea of guilty was entered, and the proceedings leading up thereto, but that said shorthand notes were subsequently lost; that they were not transcribed; that their correctness was not certified to, filed and made a part of the pleadings in said case as required by said R.S. 62-1304 of the Revised Statutes of Kansas, 1949.

'(3.) The Court further finds that in the month of November, 1958, a nunc pro tunc order was entered in said Crawford County case, whereby the Court made a finding by adding to the journal entry of judgment in said cause that the appointment of counsel over the objection of the defendant, Leo Tafarella, would not be to his advantage; that said nunc pro tunc order is and was a nullity, wholly void and of no effect for the reason that it adds something to the journal entry that never occurred.

'(4.) The Court further finds that the writ of habeas corpus should be granted and the petitioner ordered released from the custody of the respondent within five (5) days.' (Numbers supplied.)

After rendition of the judgment the respondent, warden, perfected the instant appeal under a single specification of error. It reads:

'The trial court erred in finding that they District Court of Crawford County, Kansas, was without jurisdiction to accept Leo Tafarella's voluntary plea of guilty because of failure to fully comply with G.S.1949, 62-1304.'

In passing we note that in his brief, filed in this court, appellee states:

'The essential question before this court is whether the District Court of Crawford County, on September 26, 1949, had jurisdiction to accept appellee's plea of guilty to the charge of first degree murder, in view of the provisions set forth in G.S.1949, 62-1304.'...