Trotter v. State, 47757
| Decision Date | 13 December 1975 |
| Docket Number | No. 47757,47757 |
| Citation | 543 P.2d 1023,218 Kan. 266 |
| Parties | Jerry TROTTER, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an appeal from an order denying postconviction relief pursuant to K.S.A. 60-1507 is examined, and, as more fully set forth in the opinion, it is held: (1) This court does not approve of any failure to strictly comply with the provisions of K.S.A. 22-3210 governing the acceptance of guilty pleas; (2) deviation from the statute's provisions does not mandate automatic reversal if the record demonstrates satisfaction of the due process requirements embodied in K.S.A. 22-3010; (3) the district court's failure to fully comply with the statute's provisions was harmless error where the record affirmatively showed the guilty pleas were knowingly and voluntarily entered; (4) a plea of guilty is not rendered involuntary because it was induced by a promise not to invoke the provisions of the Habitual Criminal Act; (5) a guilty plea which represents a voluntary and intelligent choice among alternative courses of action open to the accused is valid; (6) an accused entering a voluntary plea of guilty is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto, and (7) appellant was not denied the effective assistance of counsel.
Dennis O. Smith, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, arged the cause and was on the brief for appellant.
Charles A. Briscoe, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Porte K. Brown, County Atty., were with him on he brief for appellee.
This is an appeal from an order of the district court denying petitioner's motion for post-conviction relief pursuant to K.s. A. 60-1507.
On April 25, 1974, the appellant Jerry Trotter walked into Mammel's Jack and Jill grocery store in Hutchinson and took approximately $1,011 from an employee at the point of a .22 caliber pistol. The police were called while the robbery was in progress, and an officer who was near the store responded to the call. Arriving at the store, the officer saw Trotter emerge, gun and moneybag in hand. The officer, driving a marked police car, pulled into the parking lot and ordered the appellant to halt and drop his gun. Instead, trotter fired at the officer and then ran to the passenger side of the police car and fired two shots at close range. The shots struck a comb in the officer's left breast pocket which deflected the bullets and saved the officer's life. The appellant ran, and was captured two blocks away, gun and moneybag still in hand.
The appellant was charged with aggravated robbery (K.S.A 21-3427), aggravated battery against a law enforcement officer (K.S.A. 21-3415) and unlawful possession of a firearm (K.S.A. 21-4204). On the following day, April 26, counsel was appointed, and the case proceeded through preliminary examination on May 3, and arraignment in the district court on June 3, where a plea of not guilty was entered.
On July 1, 1974, the case was called for trial. The judge began to rearraign the appellant, at which time Trotter fainted. The appellant's doctor was called who examined him and reported to the court. The trial was continued to July 8.
On July 8, a jury was impaneled and the trial commenced. In the middle of the afternoon, after the state had presented six witnesses, the appellant announced he desired to plead guilty. The record shows the following occurred:
Further proceedings were then conducted wherein defendant entered and he court accepted pleas of guilty to all three counts. The defnendant received sentences of fifteen years to life on both the aggravated robbery charge and the aggravated battery charge, and a sentence of one to five years on the firearms charge. These sentences were to run concurrently, but consecutively to any previous felony sentences the defendant was serving and from which he had been paroled.
On August 13, 1974, defendant filed a motion pro se pursuant to K.S.A. 60-1507 to set aside his conviction. The motion was summarily denied on the record by the district court. Thereafter, counsel was appointed and this appeal perfected.
Appellant's primary point on appeal is that his guilty pleas were involuntary because the court did not sufficiently advise him of the nature of the charges, the possible sentence and the consequences of such pleas, and because the court did not personally question him regarding the voluntariness of the pleas.
The acceptance of guilty pleas is governed by K.S.A. 22-3210 which states in pertinent part:
'Before of during trial a plea of guilty . . . may be accepted when:
'(1) The defendant or his counsel enters such plea in open court; and
'(2) In felony cases the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
'(3) In felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
'(4) The court is satisfied that there is a factual basis for the plea.
'(5) In felony cases the defendant must appear and plea personally and a record of all proceedings at the plea and entry of judgment thereon shall be made and a transcript thereof shall be prepared and filed with the other papers in the case.'
The procedure set out in the statute is in compliance with and embodies the requirements of due process as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. (see Widener v. State, 210 Kan. 234, 499 P.2d 1123.) It has long been recognized that to satisfy the requirements of due process, a plea of guilty must be both knowing and voluntary. E.g. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Miller v. Hudspeth, 164 Kan. 688, 192 P.2d 147 (1948). The new due process requirement added by boykin was 'that the record must affirmatively disclose' a knowing and voluntary plea. brady v. United States, 397 U.S. 742, 747-48, n. 4, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747.
The transcript of the proceedings had when the pleas of guilty were made shows the court advised the defendant of his rights being waived by the pleas; the court determined that he had been advised by counsel of the possible penalty for the three counts and the consequences of the pleas; the court had the state read the information; the state questioned appellant to establish a factual basis for each of the charges, and the court restated the nature of each charge in asking for the pleas. The transcript shows the court did not inquire specifically of the appellant as to whether he was making the pleas voluntarily, but the court stated it found the pleas voluntarily and intelligently entered.
In Widener v. State, supra, K.S.A. 22-3210 was considered and applied. There it was held:
'Before accepting a plea of guilty in a felony case the court must comply with subsections (1), (2), (3), (4) and (5) of K.S.A.1971 Supp. 22&0-3210 to determine it is voluntary, and the record made on the questions posed by the court to the defendant should indicate there is a factual basis for a voluntary plea of guilty to the charge.' (Syl. 4.)
While we do not approve of any failure to comply strictly with the explicitly stated...
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