Wood v. State

• Decision Date: 23 January 1971
• Docket Number: No. 46104,46104
• Citation: 479 P.2d 889,206 Kan. 540
• Parties: Larry E. WOOD, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 889

479 P.2d 889

206 Kan. 540

Larry E. WOOD, Appellant, v. STATE of Kansas, Appellee.

No. 46104.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. The question of guilt or innocence is not properly justiciable in a K.S.A. 60-1507 proceeding.

2. The post-conviction remedy provided by K.S.A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors, unless they affect constitutional rights and there were exceptional circumstances excusing the failure to raise the alleged errors in a direct appeal. (Rule No. 121(c)(3), Rules of the Supreme Court, 205 Kan. xlv.)

3. When there is no substantial issue of fact or question of law disclosed by a motion filed pursuant to K.S.A. 60-1507, the court is not required to appoint counsel and hold a full evidentiary hearing with petitioner present.

Gillard Cohen, Wichita, argued the cause and was on the brief for appellant.

Reese C. Jones, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and R. K. Hollingsworth, Deputy County Atty., were with him on the brief for appellee.

O'CONNOR, Justice.

The petitioner, Larry E. Wood, has appealed from an order summarily denying his motion for post-conviction relief filed under K.S.A. 60-1507.

In October 1965 Wood was convicted by a jury in the district court of Sedgwick county on two counts of burglary in the second degree (K.S.A. 21-515), two counts of grand larceny (K.S.A. 21-524), and one count of possession of a firearm after previous conviction of a felony (K.S.A. 21-2611). The judgment and sentence were affirmed by this court in State v. Wood, 196 Kan. 599, 413 P.2d 90.

In his pro se motion, petitioner alleged as grounds for relief that: (1) he did not confess to the crimes with which he was charged because he was innocent; and (2) if he did make the oral confession as disclosed by the state's evidence at trial, he was not advised prior to or during interrogation of his right to counsel, nor did he waive the right to have counsel present.

The first ground is patently without merit for the reason that the question of guilt or innocence is not properly justiciable in a K.S.A. 60-1507 proceedings. (Wolfe v. State, 201 Kan. 790, 443 P.2d 260, and cases therein cited). The defense of alibi being asserted was presented and determined during the trial and affords no basis for post-conviction relief.

By the second ground of his motion, petitioner attempts to raise a trial error affecting his constitutional rights. Although conceding no objection was registered at trial, petitioner now contends that the testimony pertaining to his oral confession was erroneously admitted, and further, that he was not accorded a Jackson v. Denno, (378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) hearing on the issue of its voluntariness.

Under Rule 121(c)(3) (Rules of the Supreme Court, 205 Kan. xlv) trial errors are to be corrected by direct appeal, unless they affect constitutional rights and there were exceptional circumstances excusing the failure to raise the alleged errors in the direct appeal, in which case they may be considered in this type proceeding. (Eaton v. State, 206 Kan. 187, 476 P.2d 694; Baker v. State, 204 Kan. 607, 464 P.2d 212; Holt v. State, 202 Kan. 759, 451 P.2d 221. Also, see, Tuscano v. State, 206 Kan. 260, 478 P.2d 213; Hannon v. State, (this day decided) 206 Kan. --, 479 P.2d 852; Jackson v. State, 204 Kan. 841, 466 P.2d 305; Barnes v. State, 204 Kan. 344, 461 P.2d 782.) In his direct appeal (State v. Wood, supra) petitioner made no effort to question the admissibility of his confession. This presents a different situation than in Holt v. State, supra, and Baker v. State, supra, where the...