*1 47,189 No.
Eulysess Appellant, Appellee. M. Reid, Kansas, v. State
(515 1040) 2dP. 3, 1973. Opinion filed November Leavenworth, argued Horsky, the cause and Roger the brief E. appellant. argued cause, county attorney, Reardon, Miller, and Vern Patrick J. Dietz, special Triplett prosecutors, and Dennis attorney general, Hall appellee. for the brief him delivered court was o£ the opinion The appeal petitioner, Eulysess This M. Fontron, J.: entered in a proceeding an adverse com- from- A. 60-1507. K. S. -under himby menced rise to giving this action of events stretches chain back incident when violent occurred at the Kansas October culminating in felonious assaults on Penitentiary an officer officer, Adanas, convict. Travis unidentified was par- and an of the attack. As an aftermath of a result incident alyzed other convicts involved in the assaults Mr. Reid were placed and Treatment Center the request in the prisons had taken who Investigation, of the Kansas Bureau agents of the case. charge *2 28, 1969, kill March of assault with intent to charges
On two against to the assault against charge were filed pertaining Mr. Adams attack unfortunate and the other to the inmate. Felony charges against out of the same incident were filed arising convicts, seven other as well.
A co- preliminary hearing was held for Redd and his seven defendants on April 1969. The record indicates that counsel all requested by the accused but their were denied. requests The record further discloses that unruly were prisoners engaged tumultuous magistrate behavior before the examining and force was required to restrain the most obstreperous members group, including Reid. the disorders Despite took place, magistrate able to ultimately conduct a pre- liminary examination at which time witnesses and testi- appeared fied, and defendants, including the petitioner, acted their own counsel.
An information was filed in the district court of Leavenworth Kansas, County, on April charging Reid with two counts kill, of assault with intent and on N. James Snyder, Jr., a Leavenworth attorney, was him. 9, 1969, Reid appeared
On December before the district court to one count guilty entered of assault with intent to kill while the other count was dismissed by the state. The did not introduce evidence of prosecution previous convictions and Mr. Reid was sentenced to the Kansas State Penitentiary for not exceeding period years, the term to commence at the any sentence sentences expiration previously imposed against him. action for petitioners relief under K. S. A. 60-1507 was
heard the trial court on tims by December at which Reid appeared and was personally represented by Mr. E. Roger a member of Horsky, the bar of this state. At the conclusion of evidentiary at hearing, which witnesses testified both on behalf of and on behalf of state, the district court, on February entered its judgment denying relief.
The questions presented are set forth in petitioners brief as follows: finding establish that his failed to defendant the Court err “1. Did represented effectively by having counsel
rights prejudiced been not were throughout proceedings? finding free that defendant’s err “2. Did Court special lengthy voluntary confinement and lack in view of counsel?” effective error, the trial first claim of court Mr. Reid’s with
In connection prejudiced had failed to establish that he found counsel at the preliminary having provided been such a supports conclusion. We believe record examination. held that the preliminary has frequently in the past court This that, criminal point process is not critical examination failure provide showing of prejudice, absent not constitute does prejudicial accused Stewart v. error. (Cooper No to Mr. 476 P. *3 in to have resulted this case from is shown substantial hearing. at the preliminary absence State, 838, 210 Kan. 502 P. 2d we v. ac- In Johnson Alabama, Coleman of the decision in v. awareness our knowledged 387, 1999, S. 1, 2d 90 Ct. where the first L. Ed. for U. 26 S. 399 Court held the States Supreme preliminary United hear- time the in criminal stage proceedings requiring a critical as- to be ing However, Illinois, in the later case Adams v. counsel. sistance 202, 916, 92 S. Ct. 278, L. 2d 31 Ed. same august U. S. 405 not to application was retrospective given held tribunal in holding. preliminary instant case Coleman Alabama, supra, and prior also to to Coleman K. S. A. prior 22-4503, according right counsel at all stages of Supp. 1972 adhere, Consequently, we case, this proceeding. a criminal State, State, Delano v. (Johnson supra; rule. former our 674, 18.) 670, 498 P.2d contention, however, is that he principal He guilty. argues that entering into continued coerced Center, Treatment somewhat confinement walls, confinement within for the prison term euphemistic inattentive ineffective counsel created such combination him that around atmosphere guilty plea was a coercive entered, constrained. record although from the appears ap- It did not his client in the on visit pointed counsel time, nor did he see his client until December penitentiary any into court brought Reid was and conferred with him when entering vague before about guilty. conference; he could not say the duration of the whether it was hour, minutes, an or fifteen minutes. thirty
It incomprehensible would seem a member of the bar of client, not, utterly ignore this state would months, than period more six and we cannot but note what on surface, and unexplained, to be appears untoward neglect. However, are sit we not here called judgment on except counsel’s conduct have reacted adversely to Rather, are to client’s cause. determine whether the trial court’s "that movant’s finding freely and voluntarily entered” finds substantial in the record. support
Our rule is well established confinement in isolation is not in itself sufficient to sustain a that a finding guilty has been entered improvidently, involuntarily, or under duress. (Knight State, 578; 203 Kan. 2d P. Lee v. 204 Kan. 461 P. Davis v. Our latest decision this effect is found in Ridge, 208 Kan. P. 2d where one of Reid’s co-defendants unsuccessfully advanced same made here. argument
But argues defendant in substance that he was not furnished counsel, effective assistance of and that this circumstance added compulsive atmosphere he was placed. This court has good had deal to say subject counsel, effective the sum total which has been that before it can be said there has been a denial of the constitutional right it must *4 clearly appear representation afforded the accused was State, ineffective and wholly inadequate. v. (Widener 210 Kan. 1123; State, 499 P. 2d Winter v. 210 Kan. 603, 502 Richardson, P. 2d In 733.) 194 Kan. 2dP. 799, we said: upon . “. . The burden rests to show that his counsel was incompetent inadequate representing
so
and
him that the total effect was that
complete
of a
absence of counsel.
.
.
.”
State,
also,
(See,
Toland v.
200 Kan.
434 P. Shores
State,
195 Kan.
We have also of his totality gauged by must be his client services to attorney’s 668; Davis v. 688, State, (Call representation. P. 2d Baker supra; cases, foregoing set out in by the standards Measured being, his client services to Snyder’s cannot stigmatize as his efforts Desultory effect, whatever. count in the dismissal of been, resulted they have reference to without imposed loll and a sentence intent to that plea is evident realistically, Act. Speaking Habitual Criminal counsel, the net on between going opposing had been bargaining advantage. considerable to the result of which court concluded that Reid’s trial hearing die evidentiary After this making deter- voluntarily made. guilty plea that when testimony it Reid’s own had before the court mination he was that guilty, that the court he had advised pleading guilty entered, that he desired being freely to show why had no cause he to accept the court record, this firm Reid Against be pronounced. not should allocution; he at the the truth telling he explains now escape that he did so to say; him to told what said court, as the trier of the the trial Obviously confinement. at face value. facts, the explanation accept did not indicate physical in the record to abuse hard- findWe will petitioner’s overcome or have have might ship The record guilty. a false reflects neither him into coerced part officialsnor prison promises behavior threatening close confinement if he from pleaded guilty. Reid would released promises that no of that Indeed, justified the inference character Mr. Reid inasmuch as he was not released from seg- were made A entry of his retained the &T Center regation four months thereafter. nearly he was told Reid testified Leavenworth County Attorney, Tillotson, he would until not be released from segregation of, but this disposed case was categorically denied stated “I county attorney who would deem such a practice quite stated also on the stand reprehensible.” he was informed by that the only way guards could prison be released would be by or when all cases guilty plea disposed of. This is not corrobo- record, although practice rated seems to have been to *5 him and not release request the Bureaus a segregate prisoner to return gave permission the Bureau until his completed case so, find of Even him the general prison population. essentially perni- such practice record to a belief that justify cious. findings court’s
We to conclude the trial are constrained its must sustained competent substantial evidence be affirmed.
It is so ordered. concur I cannot in conscience J., dissenting: good
Prager, con- decision of the majority the court under stitutional was satisfied right to the assistance In Avery case. in this totality in the record circumstances shown Alabama, Supreme Ct. 308 U. S. 84 L. Ed. 60 S. Court of the United States stated that the mere formal appointment counsel, confer, without for counsel to allowing opportunity defense, consult with the constitute accused and to prepare a violation of the guaranty constitutional of assistance counsel.
In the
United
Court
past
years
several
States
of Appeals for
the Fourth Circuit
cases
corpus
has considered a number
habeas
counsel.
alleging
ineffective
Out of these cases
has arisen the
that late
lack
proposition
appointments
prepa-
counsel,
ration of
showing
“are
and mere
inherently prejudicial,
of them constitutes a
of denial
assistance
prima
case
of effective
facie
so that the burden of
lack
proving
is shifted
to the state.”
372 F.
Peyton,
673 4th(
Cir. 1967);
Twiford
Cox,
315 F.
C.
Supp.
(D. Va. 1970). In Turner v.
Johnson
With these cases in mind let us turn to the undis- is set evidence which forth in the record in puted this case and factual following which establishes the circumstances: alleged (1) basis of the charge in this on place case took October 1968. The petitioner Reid was placed confinement and Treatment Center on October 1968. His penitentiary plea of guilty on December entered at which time he had been in solitary approximately confinement months. On March two
(2) charges of assault with intent to kill denied counsel were filed Reid. against requested He 10, 1969. which was held on preliminary hearing April Leavenworth An in the district court of (3) information was filed N. 1969. On county April Snyder, James Reid. Jr., a Leavenworth There is the record show that appeared per- in court at the sonally time of this appointment apparently did not do so. After
(4) appointed to represent Reid wrote letters to Snyder. never went to the many penitentiary confer Reid nor did he answer his letters. Snyder never saw or conferred with Reid until day en- ' tered, 9,1969. December *7 (5) 5, 1969, Reid, After Snyder’s appointment not hav- an ing opportunity to confer with his appointed discussed the case with of the Kansas representatives Bureau Investiga- tion and requested them to county advise the that he attorney to wanted come into court and plead guilty. The county attorney set the case for trial after he received a letter from Reid to that effect. Reid testified that he wrote the letter because he told that was only he could way get out of solitary confinement. Reid was
(6) not able to consult with his appointed counsel until after the county attorney had set the case At that plea. time the decision to enter plea had already been made Reid by without the advice of counsel and counsel did not make his ser- vices available to Reid until the very day the had been plea sched- uled for hearing before the court.
The character of Snyder’s legal representation of Reid can best be shown from Snyder’s at the 60-1507 testimony in De- cember 1971. On direct examination Snyder testified that he was familiar with vaguely Reid and he apparently had received an appointment him; represent he had no records which he had case; maintained he had no independent recollection as to what when Reid transpired entered his plea guilty; he never visited Reid at the Kansas State after Penitentiary his ap- pointment. His recollection was that Reid was anxious plead guilty and had written a letter to the county attorney’s office to that effect. Snyder did not know how long he discussed the matter with Reid on day entered, the plea was hour, for one maybe minutes, maybe maybe minutes. Prior to entry county attorney. he plea bargaining discussed attor- county and the count get dropped was to result the remain- act on not to the habitual criminal ney agreed enforce an admission made ing county attorney count. The showed further testi- to win the case. Reid. There no way he may Reid his desire to plead guilty fied that when expressed wanted because he wanted to plead have stated that guilty out get solitary confinement. trial for relief under 60-1507 the court Reid’s motion denying made of fact to its conclusion that the movant findings justify failed to establish that his not hav- prejudiced by had him and that his ing guilty was not entered. Furthermore trial court placed on the than the burden of rather proving prejudice federal the state where under the decisions discussed above of the belonged view fact the initial properly consultation between and his court-appointed attorney Reid occurred only a short guilty time before entered. When undis- facts establish the puted type legal representation afforded are this case his counsel considered light under obligations of defense counsel the federal decisions and the American Bar Association Standards for Criminal discussed Justice above, I other cannot reach conclusion but that any the defendant was denied his constitutional right to the effective assistance of counsel. I case with directions would reverse the trial court to set aside the conviction and Reid’s to proceed trial information filed in original the case.