State v. EatonState v. Eaton
- Reporters:
- , ,
- Before:
- Fatzer
The opinion of the court was delivered by
Fatzer, C. J.:At issue is the validity of appellant’s resentencing in the Shawnee district court on December 16, 1971, following a successful collateral attack in the United States District Court for the District of Kansas, vacating the sentence initially imposed in December 1965. The facts are not in dispute.
On November 15, 1965, appellant, Jack C. Eaton, was convicted of burglary in the second degree (
This court affirmed appellant’s conviction in
State v. Eaton,
199 Kan. 192, 428 P. 2d 847. Thereafter, Eaton sought and was denied post-conviction relief (
Concomitant with appellant’s post-conviction relief with respect to the burglary and larceny convictions, he commenced a habeas corpus action in the United States District Court. Appellant alleged, among other things, the enhanced sentences imposed by the Shawnee district court violated the due process clause of the Fourteenth Amendment in that the state’s evidence of the Arkansas and Wyoming felony convictions failed to establish he was represented by counsel. After a full evidentiary hearing, the federal district court held the evidence presented on the Wyoming conviction did not affirmatively indicate appellant knowingly, intelligently and voluntarily waived his right to counsel and that it could not be utilized in sentencing under the Kansas Habitual Criminal Act. (
The district court found the 1950 federal conviction valid, and resentenced appellant as an habitual criminal for a term of not less
*88
than ten nor more than twenty years for the burglary conviction, and for a term of not less than ten years for the larceny conviction. Sentences were imposed under provisions of
The focal point of this appeal is the penalty imposed by the December 16, 1971, resentencing order for the burglary conviction. In 1965, when appellant was convicted of burglary in the second degree, the prescribed penalty was for a term of not less than five nor more than ten years. (
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years . .
At the original sentencing the district court had the option of sentencing appellant to life imprisonment, or for any number of years not less than fifteen. (
On prior occasions this court has declined to undertake a comparative analysis of indeterminate sentences. (State v. Fountaine, supra; State v. Smith, 206 Kan. 744, 481 P. 2d 995.) Such an analysis would best be resolved by carefully examining the circumstances attending each case rather than by an attempt to catalogue the many sentencing variations that can occur. We deem a comparison *89 unnecessary in deciding this appeal and assume, arguendo, there was an increase in appellant’s sentence.
In Fountaine this court stated enhanced punishment imposed “out of pique, resentment, or other unwortih motive” would not be tolerated. Likewise, the principles intimated in Pearce were designed to prohibit “vindicative” or “retaliatory” motives from infecting the resentencing process. (Moon v. Maryland, 398 U. S. 319, 26 L. Ed. 2d 262, 90 S. Ct. 1730; Colten v. Kentucky, 407 U. S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953.) But Pearce does not impose an absolute bar to a more severe sentence; nor does application of the habitual criminal statute constitute a per se violation of its purpose. (State v. Smith, supra; Young v. State, 207 Kan. 166, 483 P. 2d 1020.) It is necessary the complaining party show either vindictiveness, or that judicial discretion was abused to obviate the penalty imposed. Imposition of a higher sentence is constitutionally permissible in the absence of vindictiveness. (Chaffin v. Stynchombe, 412 U. S. 17, 36 L. Ed. 2d 714, 93 S. Ct. 1977; Michigan v. Payne, 412 U. S. 47, 36 L. Ed. 2d 736, 93 S. Ct. 1966.) Generally on this subject, see State v. Parker, 213 Kan. 229, 516 P. 2d 153.
We have carefully examined the record and there is not one scintilla of evidence indicating appellant’s resentencing was the product of any retaliatory motive or that the district court abused its discretion. The appellant was resentenced as a second offender, and the penalty imposed was in accord with controlling statutes. The court correctly doubled the statutory penalty for second degree burglary of not less than five nor more than ten years. (
In passing we note that pursuant to
Appellant requested that his appointed counsel present two addi *90 tional arguments. In considering those arguments, we acknowledge appellant’s counsel has complied with State v. Grimmett & Smith, 208 Kan. 324, 491 P. 2d 549.
It is first contended the appellant’s resentencing should have been accomplished under provisions of the present habitual criminal statute,
“The sentencing of convicted criminals pursuant toK. S. A. 1971 Supp. 21-4504 is applicable only to those initially sentenced for offenses committed after the effective date of the new criminal code, July 1, 1970.” (Syl. f 10.)
Eaton was initially sentenced in December, 1965, and his sentencing under provisions of
It is lastly argued the 1950 federal conviction was improperly utilized at his resentencing. The appellant seeks reversal for the reason that at the time he was sentenced for the 1950 federal conviction, that court considered the 1954 Wyoming conviction which had been found to be invalid. The argument appears factually impossible, and we decline further comment. In Kansas, sentencing under the Habitual Criminal Act,
We find no error in the judgment of the court below and the same is affirmed.