Tibbett v. Hand

• Decision Date: 12 December 1959
• Docket Number: No. 41613,41613
• Citation: 185 Kan. 770,347 P.2d 353
• Parties: Gordon W. TIBBETT, Appellant, v. Tracy A. HAND, Warden of the Kansas State Penitentiary, Appellee.
• Court: Kansas Supreme Court

Page 353

347 P.2d 353

185 Kan. 770

Gordon W. TIBBETT, Appellant, v. Tracy A. HAND, Warden of the Kansas State Penitentiary, Appellee.

No. 41613.

Supreme Court of Kansas.

Dec. 12, 1959.

Rehearing Denied Jan. 27, 1960.

Syllabus by the Court.

Following Goetz v. Hand, 185 Kan. 788, 347 P.2d 349, it is held:

'In a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of G.S.1957 Supp., 62-1304, (specified in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225), insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.' (Syl. p1.)

Gordon W. Tibbett, appellant, pro se.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gne., was with him on the brief for appellee.

SCHRODER, Justice.

This is an appeal in a habeas corpus action by the petitioner from an order of the district court of Leavenworth County, Kansas, denying the petitioner's writ.

The appellant is presently confired in the Kansas State Penitentiary pursuant to the order ot the district court of Finney County, Kansas, entered on the 20th day of December, 1957, wherein he was sentenced to a term of not more than ten years on each of two counts of second degree forgery. On May 8, 1959, the appellant filed a petition for writ of habeas corpus in the district court of Leavenworth County, Kansas. The matter was heard on the 20th day of May, 1959, at which time the writ was denied and the appellant remanded to the custody of the Warden of the Kansas State Penitentiary, appellee. Thereafter, appellant perfected this appeal.

The sole question presented is whether the district court of Finney County, which originally tried the appellant, fully complied with the jurisdictional requirements of G.S.1957 Supp. 62-1304, regarding the appointment of counsel.

On December 17, 1957, the appellant was about to be arraigned on an information in the district court of Finney County, Kansas, charging him with two counts of second degree forgery. The appellant appeared without counsel, and the court appointed Harrison Smith, a member of the Finney County Bar, to represent him. The matter was then continued to December 20, 1957. On this latter date, the appellant appeared before the court with his attorney, waived formal arraignment, and pleaded guilty to each count in the information. He was thereupon sentenced to the penitentiary.

The appellant's sole contention in this proceeding is that the official court rporter did not make and transcribe the notes of the appointment of counsel on the 17th day of December, 1957, or of the arraignment and plea on the 20th day of December, 1957, in the district court of Finney County.

There is attached to the petition of the appellant for the writ of habeas corpus, however, a transcript prepared by the official court reporter showing the appointment of counsel for the appellant in the district court of Finney County. Omitting the caption, it reads:

'Appearances: For the State--Duane E. West, County Attorney. For the Defendant--In Person.

'The Court: Let the record show that the defendant is without counsel; that the defendant is without funds with which to employ counsel; that the defendant desires that the Court appoint counsel to represent him in this action; that the defendant has been informed by the Court of his right to trial by a jury, and that the Court appoints Harrison Smith, a duly licensed and practicing attorney within the Thirty-Second Judicial District, as counsel for the defendant in this action.

'Date: December 17, 1957.'

The foregoing transcript was certified as true and correct by the official court reporter of the Thirty-Second Judicial District of Kansas over her signature.

In his brief, among other things, the appellant charges that he did tell the court he had preference to an attorney but was denied that preference, and that he 'never did plead guilty but was plead guilty by one Harrison Smith, Court appointed attorney who was appointed by the Court over the protests of defendant.'

Assuming the charges set forth in the appellant's brief are properly before the court, they are the uncorroborated statements of the appellant. This court is committed to the rule that the unsupported and uncorroborated statements of a petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of his writ where the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P.2d 1081; and cases cited therein.

The journal entry of trial and judgment in the Finney County district court introduced by the respondent appellee, after placing in issue the material allegations of the petition, fully discloses the trial proceedings of the appellant before the district court of Finney County. On the 17th day of December, 1957, the matter came on for hearing and the appellant appeared in person in the custody of the...