Wright v. State
| Decision Date | 13 May 1967 |
| Docket Number | No. 44812,44812 |
| Citation | 199 Kan. 136,427 P.2d 611 |
| Parties | Earvin Sylvester WRIGHT, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action brought under the provisions of K.S.A. 60-1507 to vacate and set aside a sentence is examined and for reasons appearing in the opinion it is held that the constitutional rights of the petitioner were not abridged and that the sentence is not void for any of the following reasons: (1) failure to provide counsel at the preliminary examination; (2) denial of petitioner's right to compulsory process for obtaining witnesses; (3) failure to advise petitioner of the date set for preliminary hearing; (4) intimidation by the examining magistrate preventing petitioner from testifying at the preliminary hearing; (5) incompetency of counsel.
Reuben E. Weatherford, Jr., of Independence, argued the cause and was on the brief for appellant.
Monte K. Heasty, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and B. D. Watson, of Independence, were with him on the brief for appellee.
The petitioner, Earvin Sylvester Wright, was convicted on two charges of second degree forgery. On appeal to this court the conviction was upheld. Our decision is reported in State v. Wright, 194 Kan. 271, 398 P.2d 339.
In the present action, initiated under K.S.A. 60-1507, the petitioner seeks to set aside and vacate his conviction upon various grounds. On receipt of petitioner's motion to set the conviction aside, the trial court appointed counsel and ordered an evidentiary hearing held. At the hearing the petitioner was present and testified. After the hearing was concluded, a memorandum was filed in which the trial court carefully considered the points raised by petitioner, entered findings of fact and conclusions of law, and denied the petitioner's motion.
The present appeal stems from the overruling of Wright's motion. Six points are raised in the brief filed by petitioner's appointed counsel.
1. Failure to provide counsel at the preliminary hearing.
2. Denial of compulsory process for obtaining defense witnesses.
3. Failure of officers to advise petitioner of the date of his preliminary examination.
4. Intimidation on the part of the examining magistrate preventing petitioner from testifying at his preliminary hearing.
5. Failure of counsel to present issues concerning the legality of pretrial proceedings, either to the trial court or on appeal.
6. Failure on the part of counsel to demand a psychiatric examination or present the issue of petitioner's sanity.
Turning to the first point raised, this court has held, in cases too numerous to mention, that a defendant accused of felony has no constitutional right to appointed counsel at his preliminary examination in the absence of prejudice to his substantial rights. Among our msot recent decisions to this effect are Addington v. State, 198 Kan. 228, 424 P.2d 871; State v. Washington, 198 Kan. 275, 424 P.2d 478; Brown v. State, 198 Kan. 345, 424 P.2d 576. We adhere to the position we have taken in the foregoing and many other cases.
The petitioner's complaint that he was denied compulsory process to obtain the attendance of his witnesses is completely refuted by the record. It is a mendacious assertion; the kind of irresponsible charge which far too often befouls the corridors of justice. At the hearing on his 1507 motion, Wright testified that no one had denied him the right to subpoena witnesses. The evidence at that hearing also established conclusively that petitioner's court appointed counsel not only tried to get in touch with defense witnesses by phone and by letter, but made a special trip to Kansas City in a futile effort to locate alibi witnesses whose names were furnished him by his client.
At the same hearing, the petitioner testified he was not informed of the time his preliminary hearing would be held. This testimony is completely uncorroborated. Rule No. 121(g) provides that uncorroborated statements of a movant (petitioner) are insufficient to sustain his burden of proof (194 Kan. XXVIII.) We also are entitled to assume that the petitioner was properly kept informed, either by the magistrate or by the county attorney, concerning the date of his preliminary examination, for it is presumed that public officers will rightfully perform their duties. (Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P.2d 51; Lyerla v. Lyerla, 195 Kan. 259, 264, 403 P.2d 989.)
During the preliminary examination, at which the petitioner was not represented, the state produced the testimony of several witnesses. When the state concluded, the examining magistrate advised Mr. Wright as follows:
The above advice constitutes the basis for the petitioner's claim of judicial intimidation which prevented him from testifying in his own behalf. We believe this contention lacks merit. In the first place the magistrate correctly stated the law, as it has been expounded by this court. In State v. Sorter, 52 Kan. 531, 34 P. 1036, it was held:
'Where a defendant freely offers himself as a witness, and voluntarily gives testimony in a preliminary examination or trial, such testimony may be introduced and read against him in the final trial of the cause.' (Syl. 6)
See, also, State v. Miller, 35 Kan. 328, 10 P. 865.
But even though it could be said that such advice was incorrectly or improvidently given, the petitioner waived whatever error may have occurred. The journal entry in the criminal case recites that upon arraignment the petitioner, who appeared with appointed counsel, was asked whether he had been represented by counsel at the preliminary hearing. On being advised that Mr. Wright was not so represented, the court inquired whether he desired a further preliminary hearing to which Wright replied that he desired to waive further preliminary hearing.
The record does not reflect that Wright has ever questioned the accuracy of the journal entry, and the trial court found that he had waived additional preliminary examination. In view of his express waiver the petitioner is now in no position to complain of any irregularity which may have inhered in the preliminary hearing. (Ramsey v. Hand, 183 Kan. 307, 327 P.2d 1080; State v. Holmes, 191 Kan. 126, 379 P.2d 304.)
A considerable part of the petitioner's attack on his sentence, (and we note he filed a pro se brief before the trial court), is directed against his court appointed counsel. Unfortunately, the practice of accusing appointed counsel of incompetency is becoming a favorite sport among persons convicted of crime. In many instances accusations of this character are based on the flimsiest of grounds.
In the present case, one of the chief complaints pertaining to the services rendered by Mr. Charles D. Knapp, a lawyer of high standing in his profession, appears to be his failure to present issues going to the regularity of the preliminary hearing. In particular, the petitioner throughout his testimony pointed to lack of counsel at the hearing, to continuances of the hearing, and to his right to present witnesses at the hearing.
It should be recognized by now that under ordinary Kansas practice the preliminary examination does not constitute a critical stage in a criminal proceeding. (State v. Richardson, 194 Kan. 471, 399 P.2d 799; State v. Washington, supra.) In State v....
To continue reading
Request your trial
-
State v. Giddings
...officer will have done his duty until the contrary has been established. (Call v. State, 195 Kan. 688, 408 P.2d 668; Wright v. State, 199 Kan. 136, 427 P.2d 611.) That presumption is valid under the circumstances of this Even if the warrant had been improperly issued, the defendant's cause ......
-
State v. Kimmel, 45231
... ... 305] as to his rights in connection therewith by his attorney at that time. No grounds are shown to revoke defendant's waiver of a preliminary hearing. (Wright v. State, 199 Kan. 136, 427 P.2d 611; State v. Holmes, 191 Kan. 126, 379 P.2d 304.) ... For his second point, defendant claims the trial court erred in not changing venue or by not transferring the case to another division of the Wyandotte District Court, because the trial judge had ... ...
-
Davis v. State
...the statute. The adequacy of an attorney's services to his client must be gauged by the totality of his representation. (Wright v. State, 199 Kan. 136, 427 P.2d 611; Call v. State, 195 Kan. 688, 408 P.2d 668 Cert. denied 384 U.S. 957, 86 S.Ct. 1581, 16 L.Ed.2d 552.) We find nothing reflecti......