Redd v. StateRedd v. State
- Reporters:
- , ,
- Before:
- Fatzer
The opinion of the court was delivered by
Fatzer, J.:On November 10, 1954, and during the third day of petitioner s trial by a jury on a charge of murder in the first degree, he advisеd the court in the presence of his court-appointed counsel that he wished to change his plea from one of not guilty, to a plea of guilty to murder in the second degree, and was sentenced to confinement in the Kansas State Penitentiary for a period of 40 years.
Thе following proceedings occurred in the district court when the petitioner changed his plea:
“The Court: You are charged with second degree murder, how do you plead, guilty or not guilty?
“Mr. Redd: Guilty.
“The Court: You are pleading guilty because you are guilty?
“Mr. Redd: I guess so.
“The Cоurt: It is not ‘guess work.’ You either do or you don’t?
“Mr. Pyles: We have to make a record.
“Mr. Redd: Yes; guilty.
“The Court: You are pleading guilty because you are guilty?
“Mr. Redd: Yes, sir.”
On June 24, 1966, the petitioner filed a handwritten motion to set asidе his conviction and sentence pursuant to
These are the only allegations made in the motion concerning any possible grounds for relief.
Other statements were made by petitioner in his motion with respect to post conviction actions he had previously filed, but the district court considered only the rеcords of the petitioner’s case in the District Court of Sedgwick County, case No. A-49953.
The petitiоner alleged that on the third day of his trial, counsel and the court had a meeting in his absence and as a result thereof, he was “compelled to plead guilty under duress”; that he attempted tо contact his court-appointed counsel to withdraw his plea but he was unable to do so.
On July 1, 1966, the district court, after examining the allegations of the motion and the files and records of сase No. A-49953, The State of Kansas versus Vernon C. Redd, defendant, found they conclusively showed petitioner was entitled to no relief and that the motion should be denied.
On June 11, 1966, the petitioner filed pro se, a motion for rehearing, thе allegations of which consisted only of quoting Section 1 of the Fourteenth Amendment to the Constitution of the United States. On August 5, 1966, the district court overruled the motion for rehearing, finding that it conclusively showеd petitioner was not entitled to a rehearing and that his motion should be denied. Thereafter this аppeal was duly perfected and Mr. John E. Foulston, a member of the Wichita Ear, was apрointed to represent the petitioner in preparing and presenting his appeal.
We are of the opinion the petitioner’s motion stated nothing but conclusions, and the district court did not err in summarily overruling it. Its allegations presented no justiciable issue under
The record clearly indicates that upon interrogation by the district court, the petitioner stated in open court he was guilty of the offense of murder in the second degree and that he was pleading guilty because he was guilty. We are of the opinion the petitioner s motion-stated only bare legal conclusions with no supporting factual allegations. In Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581, it was said:
“We have held in State v. Burnett, 195 Kan. 645, 400 P. 2d 971, that the right tо an evidentiary hearing in proceedings brought underK. S. A. 60-1507 does not extend to those instances wherе the claims advanced are trivial, frivolous or insubstantial. In Webb v. State, 195 Kan. 728, 408 P. 2d 662, we further hold that a sentencing court is vеsted with discretion in ascertaining whether a claim made under the foregoing statute is substantial befоre granting an evidentiary hearing thereon and requiring the petitioner’s presence.” (l. c. 693.)
In Perrin v. State, 196 Kan. 228, 410 P. 2d 298, it was said:
“. . . The statute (K. S.A. 60-1507 ) provides that the motion may be determined ‘without requiring the production of the prisoner at the hearing.’ Not every colorable allegation entitles a prisoner in the penitentiary to a trip to the sentencing court. Neither is the district court compelled to accept all allegations in a motion filed for relief under the statute as presumptively valid, nor accept allegations which are patently unbelievable.’ (Edge v. Wainwright, 347 F. 2d 190, 192.) Flimsy and transparent charges or allegations are insufficient to sustain a justiciable controversy. . . .” (l. c. 233.)
See, also, Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068; United States v. Rosenberg, 200 F. 2d 666, cert. den. 345 U. S. 965, 97 L. Ed. 1384, 73 S. Ct. 949; United States v. Pisciotta, 199 F. 2d 603; United States v. Sturm, 180 F. 2d 413, cert. den. 399 U. S. 986, 94 L. Ed. 1388, 70 S. Ct. 1008, and Hilliard v. United States, 345 F. 2d 252.
The judgment is affirmed.