*1 44,131 No. Otis L. Appellant. Appellee, Hasty,
The State 318) Opinion January 22, filed Schultz, Wichita, argued cause, Larry Kirby, Wichita, Russell appellant.
was with him on the briefs for Sanborn, Attorney, Wichita, argued cause, Keith and Robert County Londerholm, General, Hollingsworth, Topeka, Deputy C. -R. K. Attorney County Foster, Attorney, Wichita, and Donald with him were on the briefs appellee. of the court opinion was delivered by Fatzer, L. Hasty, Otis was convicted aby J.: jury of manslaughter the first degree violation of K. S. Peni- Kansas imprisonment and sentenced A. 21-421. to K. S. tentiary pursuant *2 about Sedgwick County, examination Following a preliminary made, was charged the defendant which no complaint the crime committing information court in the district with 1, 1964, January by performing first on degree manslaughter Whitney, pregnant the of Carlene body abortion illegal upon date, woman, that in violation in her on which resulted death K. S. A. 21-410. court 1964, district the defendant came before the May
On his three counsel of for formal He with arraignment. appeared him. the defendant arraignment, own choice represent Upon trial. A jury entered a and guilty, proceeded of not the case plea each for cause. juror duly passed was and defendant impaneled, intro- The The and rested. evidence, state introduced its took stand and testified on duced his and the witness evidence behalf, trial returned jury The lasted four days, rested. charged. a verdict of guilty verdict of counsel for the defendant
Following jury’s guilty, trial, file a motion requested granted. time to for a new A a new trial was filed and heard the district motion for May support on The defendant introduced evidence the motion in opposi- and the state introduced written evidence tion thereto. motion court and fully argued The district on day that same it was overruled. the state moved the district court
Thereupon, pronounce sentence. counsel inquired The court of the defendant and his if had cause to any legal why show the sentence should he defendant, pronounced against to show failing cause and none appearing, pronounced sentence in K. S. A. 21-421. accordance with that agreed following imposition are of sentence parties 28, 1964, defendant, counsel, May through made probation.
oral district court for application S. (K. and, heard 62-2239.) fully district court well defendant and his being acquainted family and al- due though fraught situation was with emotion to the serious- case, consideration, after reflection ness serious motion for probation. overruled district court urges committed errors On the rights. substantially prejudiced the trial which during hand, by applying argues state imposed, the sentence probation therein, tihereby precluding contention, of his conviction and sentence. review the state relies 958, 12 84 S. Ct. den. U. L. Ed. 2d cert. S. Robertson, 1015; Kan, 517, Baier, F. 2d 209 (1964). State of trial, him at did not represent
Defendant’s present the decisions just the force effect of recognizing and while cited, unaware of those decisions that trial counsel was argues he consulting without and that counsel made and, the defendant the defendant was unaware consequence, thereby recognized by making *3 and therein which validity judgment placed of the in to of his conviction right jeopardy. have review appellate in v. argues Counsel announced State cases, and overruled and contends there supra, related should be and is a distinction between probation granted probation clear that if the defendant is requested; probation granted, accepting is from the and if judgment subsequently benefits court after he fails to set the comply with the conditions of probation then, then, right review be considered appellate only lost; that a is an of benefit acceptance any from the of it amounts judgment nothing conviction and that more than an offer made to the and to district county attorney sentence, court imposing which should no wise be construed an an guilt agreement or the verdict is admission correct, or used as the defendant any basis of inference intends to waive his and have review of appeal appellate the conviction.
At
the rule announced in
request,
related cases has been
reviewed and a
fully
majority
court
convinced that
is
is
the rule
sound and that the act of
voluntarily making application
any interpretation
recognition
than
of the
when
validity
judgment
he seeks affirmative relief from serv-
ing the sentence
State v.
it
imposed.
Mooneyham, supra, was
said:
right of
62-1701, giving
statute,
G. S.
“Our
clearly
benefit
judgment
right from a
matter
as a
judgment
through acquiescence
right may
him
waived
be
317;
Bair, 166 Kan.
589, 590,
In re
(Wilhite
Judy,
v.
137 Kan.
310),
328, 330,
failure
2d
or
807;
380 P.
191 Kan.
199 P.
prescribed.
held
It has been
perfect
and manner
time
part
implied
any
accused incon
of the
on the
that a waiver will be
act
except
capital
appeal,
or where
cases
sistent with an intention to take an
Miller,
(State
imprisonment.
punishment
v.
is life
823;
498;
Wilson,
24 C.
187 Kan.
by pursuing
appeal may
p. 1047.) Likewise,
waived
§
discretionary
although
sought by
remedy,
the relief
the accused
alternative
2d,
appealed.
Am.
with the
of refusal cannot be
court
its order
Jur.
Appeal
Error,
p. 764.)
sought
validity
judgment
he
when
“The defendant
voluntarily
serving
imposed. By
relief from
sentence
affirmative
acqui
alleged
thereby
parole
trial errors and
waived
recognition
judgment.
rests
esced in the
The rule
partial
well as full
judgment
This
is shown
as valid.
compliance.
yield
to a
afterwards
A defendant
obedience
cannot
129, 132,
Judy,
Massa,
(Wilhite
supra;
from it.
v.
rel.,
626;
Piper,
State,
Mick v.
Pac.
ex
Pac.
State,
Wilson,
536, 539,
also,
257.)
See,
A. P. Brown
287 Pac.
5 Okla. Cr.
In State v.
dismissed.
adhered to and
v. Robertson,
Mooney-
laid
in State
the rule
down
appellant’s
concern with
real
“The
*4
acquiescence
judgment
parole
request
ham, supra,
for
constitutes
that a
appeal.
appellant’s
a waiver of
to
and thus constitutes
concerning
appellant’s
specific
by
trial
argues that without
advice
requisite
appellant
under-
appeal,
said to have had
cannot be
right.
fallacy
argu-
intelligent
this
standing
waiver of
to make an
Mooneyham, supra,
underlying theory in State v.
that the
in the fact
ment lies
acquiesces
recognizes
appellant
in the
of the judgment
validity
is that
appealing,
precluded
seeking probation.
because he ex-
He is
not
right,
expressly
understandingly
pressly
but because he
waived
itself,
understandingly
which,
took action
consequent acquies-
parole,
and the
Since
intention
made,
validity,
intentionally
judgment
fact that
in the
cence
appellant may
that he would be bound
reason-
not have understood
action,
foreclosing
appeal,
logical implications
thereby
able and
(1.
670, 671.)
immaterial”
c.
Baier,
it
was said:
supra,
pronounced by
that when sentence was
reflects
“The record further
requested
parole
Recently
trial court.
from the
trial
Robertson,
232, Syl.,
396 P. 2d
this
court restated its
by applying
parole,
long-established
recognizes
that a
for a
rule
.
therein.
.
.”
Kansas,
v. State
supra, Mooneyham appealed
district court
from an
of the federal
for the district of
order
Kansas
for writ of habeas
dismissing
petition
corpus wherein he
that the
announced
court in
alleged
by this
Mooney
ham,
him of his basic
deprived
violation
of the United
provisions
Constitution
States. He
contended that K. S.
et
him a
seq., gave
right to
from his conviction in the
state district
to the supreme court
of Kansas and that
court’s
decision was an unconstitutional
discrimination
The Circuit Court of Appeals (Mooney
ham State
affirmed
federal
supra)
district court’s
denial of his
for a writ
petition
of habeas
and held
corpus
right to
in criminal cases
guaranteed
federal
constitution;
that a state consistent with due process may provide
criminal
by convicted defendants in
cases on such
terms
as it deems
and that
relief
appropriate
no
to state prisoners is avail
able
federal courts when fundamental
rights guaranteed
United States Constitution have not been
In the
violated.
opinion
considering
parole
the effect of an
“In
under the Kansas
imposed,
Supreme
statute after
sentence has
the Kansas
Court has con-
acquiescence
strued such
a waiver of
trial errors and an
that ‘[t]he
It
said
rule of
rests
Mooneyham, supra,
valid.’ State v.
Supreme
at 217.
In a later case the
Mooney-
Court of Kansas adhered to the
ham rule. State v.
ing competent who were and experienced court with able attorneys were shows that his fairly record represent In being done. what was him that he understood speaking for 978, 2d 694, Crouse, 191 Kan. 383 v. Johnson faith, petitioner must be held of bad there no evidence “. . . since performed attorney in his the acts were of his when acts bound long respect presence objection. the rule with has This without (Miller Syl. Hudspeth, supra. 14), and the administra v. to retained counsel ¶ appointed.” justice tion similar rule where counsel is dictates a of criminal See, also, v. v. State Robert- 1, State Spain, 131, son, Burnett, 126, 397 P. Kan. 2d State 194 none whereby, No reason has been and we know of presented valid circumstances, it the defendant was under can be said unaware him, of the fact that an had been made for or that his counsel did not or that he did not under- speak stand what done and therein. being import, foregoing, view we conclude the defendant waived sentence, appeal from and under the authority of State and related Mooneyham, supra, cases hereto- adhere, fore cited to which we this appeal dismissed. so ordered. It is I J., dissenting: realize that rule laid Although
Fontron, 2d cert. down den. 377 U. S. L. 84 S. has become Ct. Ed. state, constrained, more, settled I am law this once express my say it is disagreement. my judgment, nonsense action had acquiesced in and him by virtue of the which had been on made his behalf counsel. I would entertain this the merits. J., joins
Price, dissent. foregoing I the first dissenting: This is have had J., opportunity O’Connor, in State v. Mooney rule enunciated my opposition register cert. U. S. 12 L. ham, den. Ed. numerous, to in subsequent S. Ct. adhered in the majority opinion. cases cited statutory right granted right to a criminal case is *6 Coletti, the state
by through legislature (State constitu- the federal by 170 Pac. and is not a 995) right guaranteed legis- tion 339 F. 209). (Mooneyham v. of lature, criminal has a defendant in a K. S. provided A. of right court as a matter supreme case the right the rule my any judgment against opinion, of that right an unwarranted deprivation constitutes acquiescence seizing upon liberally applying has in civil cases. which consistently applied Hill, stated in In re Estate rule well 2dP. 151: voluntarily party “In a who this state it is an established rule of law that in, recognizes judgment, order ratifies or of a or decree position right takes a is inconsistent with the or otherwise therefrom, thereby impliedly estopped right waives or is to assert his judgment, appellate have such order or decree reviewed court. words, anything other that savors of in a cuts off the appellate (Syl. 1.) review.” ¶ These same elements are the Mooneyham opinion and form the basis of the decision rendered therein. statutory right in a criminal case is of such funda-
mental that the cotut importance extremely be cautious a finding waiver thereof as a mere matter of inference. (4 Am. Jur. 2d, Error, 270; Appeal 24 C. § In State v. Harmon (Mo.), S. it was W. stated that an appellate court should not find a in a criminal case has waived his or is record, estopped unless the the acts and all of the circumstances are inconsistent with It interpretation. was further observed that while an court should be slow to find a waiver of the right of inference, a appeal as matter it should do so without hesitation if intention to waive was clear.
I cannot fathom that a request freedom in the nature of an or for suspension the execution of sentence S. A. amounts (K. 62-2239) to a voluntary acquiescence, ratification or validity of the judgment of con- True, a defendant applying viction. probation recognizes a say acknowledges but judgment, validity belies man’s freedom, even under innate desire for supervision and regulation. to rationalize difficult that such a equally It is is an intention to take an seeking probation is rights. statutory exercise of another of a merely request that probation Under the rule of the the mere majority, under 62-2239 to appeal under K. S. A. forecloses granted abrogated appeal rights I believe should not be K. S. 62-1724. under such circumstances. relied on in Mooneyham the cases cited and examination of
An of fine was the every instance there nearly payment reveals later to appeal. or costs convicted defendant who attempted present Additional were in State facts sen- plea the defendant guilty, P. 2d There entered fines and He jail began to seven assessed costs. days tenced and ac- Three later he was serving days granted, sentence. and costs. fines parole, paid cepted, cases, therefore, distinguishable of the cited factually Each *7 those as of the instant case. Mooneyham from the facts of well of the defendants were such that there at least acts words, with the judgment. or full compliance partial obedience, least, extent yielded to some at defendants factor, additional in State v. As an his sentence later began serving bene- accepted doubt, seems little of a There there parole. appears fits authority supporting proposition, that a considerable of, for, will constitute a acceptance waiver C. appeal. defendant’s right that a defendant logically argued who contemplates It could in the going his conviction appealing seeking of execution and stay remaining instead free prison Yet K. A.S. 62-1724 pending. provides (a) while at time six case he within months from the may appeal rule, however, Under the of sentence. date a defend- requests under similar circumstances who de- ant my opinion, prived there as much other, one instance in the for the element except preserved voluntariness. statute on hand, by judicial rule is withheld on the one the other. statutory right I believe not be applied probation. because simply denied should be considered on the instant case merits. I therefore dissent. respectfully foregoing dissent. J., joins
Price,