White v. State
| Decision Date | 13 July 1968 |
| Docket Number | No. 45265,45265 |
| Citation | 443 P.2d 182,201 Kan. 801 |
| Parties | Earl WHITE, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus be the Couurt
1. The provisions of Rule No. 121 (j) were adopted by the suprem ecourt to supplement procedures under K.S.A. 60-1057 (197 Kan. LXXV), and are mandatory upon district courts when a motion is filed by a prisoner in custody under sentence of a court of general jurisdiction, and the court grants 'a prompt hearing' to 'determine the issues' of factual allegations contained in the prisoner's motion. The provisions of the rule are not applicable where 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' (K.S.A. 60-1507 (b).)
2. The requirement of findings of fact and conclusions of law provided in Rule No. 121(j) is far from a technicality, and was adopted to insure that justice shall be administered according to facts and law. (K.S.A. 60-1507.)
3. The failure of the district court to comply with the requirement of Rule No. 121(j) in determining factual issues presented in the defendant's motion following an evidentiary hearing thereon, with the defendant present in court, requires that the case be remanded with directions to make findings of fact and conclusions of law as more fully stated in the opinion.
Maurice P. O'Keefe, Jr., Atchison, for appellant.
Robert D. Caplinger, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and F. Stannard Lentz, Asst. County Atty., with him on brief for appellee.
The petitioner, Earl White, has appealed from an order of the district court of Atchision County, denying his motion made pursuant to K.S.A. 60-1507, to set aside his plea of guilty to murder in the second degree and the sentence imposed thereunder of confinement at hard labor in the Kansas State Penitentiary for the term of his natural life.
The petitioner is hereafter referred to as the defendant.
On July 10, 1966, the defendant was arrested on a warrant issued out of the City Court of Atchison, charging him with murder in the first degree for the killing of Betty Jo White, his wife. Mr.Gerald Foley, a member of the Atchison County Bar, was appointed to represent him. Following a preliminary examination, the defendant was bound over for trial at the first term of the district court on the charge alleged against him. On a date not disclosed by the record, an information was filed in the district court charging the defendant with murder in the first degree.
On September 12, 1966, the defendant appeared in the district court in custody and with Mr. Charles S. Scott, of the Shawnee County Bar, an able and experienced lawyer in criminal matters, whom the defendant had previously retained. Counsel advised the court the defendant was not prepared to enter a plea, and orally moved the court for the appointment of a commission pursuant to K.S.A. 62-1531, to inquire into the sanity of the defendant. A commission was duly appointed, which examined the defendant and filed its written report that he was not insane and was able to comprehend his position and make his defense to the crime with which he was charged.
On September 19, 1966, the state appeared in court by the county attorney, Mr. William E. Stillings, and the defendant appeared personally and with his attorney, Mr. Scott. Counsel advised the court that the defendant had agreed to enter a plea of guilty to second degree murder. The court inquired of the county attorney whether such a plea would be acceptable to the state, and the court was advised in the affirmative. Thereafter, the defendant was duly arraigned on the charge of murder in the second degree to which the defendant stated he entered his 'free and open plea' of guilty. Following allocution and after advising the defendant of the penalty of the offense of murder in the second degree and hearing statements of counsel on the defendant's behalf, the court sentenced the defendant to confinement at hard labor in the Kansas State Penitentiary for the term of his natural life.
On the following day, September 20, 1966, counsel for the defendant filed two motions, one to withdraw the plea of guilty and to enter a plea of not guilty to the charge of murder, and the second, to modify the sentence of life imprisonment imposed on the previous day. The first motion contained three main allegations which are summarized: (1) that the defendant's plea of guilty was induced as a result of a promise made by the county attorney to counsel for the defendant that if the defendant would enter a plea of guilty to murder in the second degree, the county attorney would recommend a sentence for a term of years, which promise the county attorney failed to comply with; (2) that the defendant had a defense to the charge which he could have relied upon, and (3) that the defendant's plea of guilty to murder in the second degree was not freely and voluntarily made.
The motion further alleged the county attorney was not permitted to make his recommendation of a sentence for a term of years; that the defendant relied upon the agreement between his attorney and the county attorney and that had the defendant been aware or had it been indicated that a life sentence would be imposed, 'no such agreement to enter a plea of guilty would have been consummated.'
The second motion to modify the sentence incorporated the allegations of the motion to withdraw the defendant's plea of guilty and enter a plea of not guilty.
On October 27, 1966, the defendant's motions came regularly on for hearing, which consisted of statements of counsel for the...
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