Widener v. State

• Decision Date: 19 July 1972
• Docket Number: No. 46643,46643
• Citation: 499 P.2d 1123,210 Kan. 234
• Parties: Terry Lee WIDENER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 1123

499 P.2d 1123

210 Kan. 234

Terry Lee WIDENER, Appellant, v. STATE of Kansas, Appellee.

No. 46643.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. In measuring the adequacy and effectiveness of counsel provided for an accused as guaranteed by the constitution of the United States adequacy and effectiveness must be gauged by the actual representation afforded the accused.

2. To be a denial of an accused's constitutional rights it must clearly appear that the representation of the accused by his counsel was wholly ineffective and inadequate.

3. An accused is not denied the effective assistance of counsel guaranteed by the United States Constitution merely because the attorney appointed to represent him holds the office of probate judge of Cowley County, Kansas.

4. 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. 22-3210 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.

5. The record in a post-conviction proceeding under K.S.A. 60-1507 is examined and the order of the district court summarily denying the motion to vacate the judgment is affirmed.

William A. Taylor, III, Winfield, argued the cause and was on brief for appellant.

Richard B. Camp, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on brief for appellee.

FROMME, Justice.

Terry Lee Widener was sentenced on pleas of guilty to second degree burglary (K.S.A. 21-520) and escape from jail (K.S.A. 21-736.) Pleas were entered July 13, 1970. He is presently in custody at the Kansas State Industrial Reformatory at Hutchinson, Kansas. No question is raised as to the terms of the sentences imposed.

This appeal is from an order denying post-conviction relief under K.S.A. 60-1507. Appellant's motions to set aside his convictions were summarily denied on the record. Two matters are raised in this appeal.

His first contention is based on a claim of denial of his constitutional right to counsel at the time of the arraignments and pleas.

A city court appointed attorney Richard E. Cook to represent the appellant. Mr. Cook was at the time in question the elected probate judge of Cowley County. It is now claimed the judge's representation of appellant conflicted with his duties as probate judge. It is argued a conflict of interest precluded the appointment and rendered the appellant's convictions void.

The probate court of Cowley County is located at Winfield, Kansas. Richard E. Cook maintains a law office in Arkansas City. Mr. Cook was appointed to represent appellant on June 18, 1970, by The Honorable Ted M. Templar, Judge of the City Court of Arkansas City, Kansas. Appellant waived his preliminary hearing in said city court on July 2, 1970. Mr. Cook continued to advise with and represent the appellant during all proceedings in the district court that followed, including the arraignment, pleas and sentencing. At no time was the appellant's case before the probate court of Cowley County.

The population of Cowley County, Kansas, is slightly over 35,000. There are two city courts located in the county with county-wide jurisdiction. The jurisdiction of these city courts includes preliminary hearings in felony cases. The judge of the probate court of Cowley County is not burdened with the additional duties imposed upon judges of county courts in criminal matters. The probate judge of that county has no jurisdiction to preside over preliminary hearings in felony cases. It should also be noted the legislature has imposed no limitation on the practice of law by probate judges in such counties except to exclude them from practice in their own court and in cases where such practice would conflict with the duties of their office or the interests of those having business before the probate court. (See K.S.A.1971 Supp. 59-207.) In view of the salary provided for the office by statute it would be difficult, if not impossible, to attract attorney candidates if they were prohibited from all law practice on being elected to such office.

Appellant does not quarrel with the quality of the representation he has received from such appointed counsel. The claim of a denial of his constitutional right to counsel in this case is based solely upon a contention that any attorney who is serving as probate judge cannot be appointed to represent an accused. The conflict of interest claimed arises not because of the factual circumstances of the particular case but by reason of the elected office held by the attorney who represented him. The conflict claimed does not arise from his counsel's duties as a probate judge or from his participation in any events in the probate court involving the appellant herein.

The cases upon which appellant relies are either from states which have an absolute statutory prohibition against the practice of law by a probate judge or the are cases involving proceedings to discipline an attorney under the Code of Professional Ethics. None of the cases apply to the facts of the present case. This is not a disciplinary proceeding and we do not have a statutory prohibition against private practice by the probate judge in Cowley County.

In Brazzell v. Maxwell, 176 Ohio St. 408, 27 Ohio Ops.2d 378, 200 N.E.2d 309, cert. den. 379 U.S. 981, 85 S.Ct. 688, 13 L.Ed.2d 572, the claim made was similar to that in the present case. There petitioner's basic contention was that he was deprived of his constitutional rights because his court-appointed counsel was a county judge, allegedly prohibited from private practice by statute. The Ohio court disposed of such claim as follows:

'There is no claim that the counsel appointed to represent petitioner did not competently represent him during the trial. Petitioner bases his argument on the statutory prohibition. The counsel appointed to represent petitioner was a duly licensed attorney at law, and the fact that because of his official position the statute may have barred him from engaging in the active practice of law does not relate to his competency as an attorney nor does it render petitioner's conviction void. See Berry v. Gray, Warden (Ky.), 299 S.W.2d 124; People v. Sardo, 15 Misc.2d 69, 178 N.Y.S.2d 691; and United States v. Bradford, 2 Cir., 238 F.2d 395.' (P. 408, 200 N.E.2d, p. 310.)

The cases from other states have generally held that holding the elective office of probate judge does not per se render the judge's services as appointed counsel a violation of the accused's constitutional right to the effectve assistance of counsel nor does it render a petitioner's conviction void.

In essence the appelant is claiming that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. In measuring the adequacy and effectiveness of appointed counsel provided for an accused as guaranteed by the constitution adequacy and effectiveness must be gauged by the actual representation afforded the accused. To be a denial of an accused's constitutional rights it must clearly appear that the representation of the accused by his counsel was wholly ineffective and inadequate. (State v. Richardson, 194 Kan. 471, 487, 399 P.2d 799; Toland v. State, 200 Kan. 184, 186, 434 P.2d 550; Baker v. State, 204 Kan. 607, 464 P.2d 212.)

Much has been cited concerning the judicial and professional ethics involved when a judge practices law. However, we are not here concerned with judicial or professional ethics. Our problem from the constitutional standpoint is limited to one question. Did the appellant have the effective assistance of counsel? In answer to that question we point out that the appellant does not claim otherwise.

The record clearly indicates that appointed counsel represented the appellant diligently and effectively. Appellant stood charged with three possible felony counts, burglary, larceny and escape from jail. Through the efforts of counsel the larceny count was dismissed by the prosecution, and after a vigorous argument to the court concerning the escape from jail count counsel for appellant succeeded in prevailing upon the court to impose the minimum sentence possible, i. e., six months in the county jail. The maximum sentence authorized by law for that offense is two years in a penal institution. (See K.S.A. 21-736.)

The trial court properly determined the first point raised by movant was without merit as a matter of law. An accused is not denied the effective assistance of counsel guaranteed by the constitution merely because the attorney appointed to represent him holds the office of probate judge of Cowley County, Kansas.

We turn now to appellant's second contention that his pleas were involuntary because of the court's failure to interrogate the accused personally and determine that he fully understood the charges against him.

Notwithstanding the expressed desire of the accused to enter a plea of guilty in a felony case, the court should not enter a judgment upon such a plea without personally making such inquiry of the accused as may satisfy it that there is a factual basis for the plea. This requirement is supported by recent cases from the high court. In McCarthy v. United States, 394 U.S. 459,...