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    George Raymond Devine v. Tracy A. Hand, Warden, Kansas State Penitentiary, 287 F.2d 687, 10th Cir. (1961)

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    This document is a court case from 1961 in which George Devine appealed the denial of his petition for a writ of habeas corpus after being convicted of burglary and larceny in Kansas state court. The appellate court affirmed the denial, finding that while Devine was forcibly brought to Kansas from Missouri, this did not invalidate his conviction. The court also found that although the trial court did not explicitly state Devine's right to counsel, the written waiver he signed showed he understood his rights and knowingly pled guilty without a lawyer. Therefore, his constitutional procedural rights were upheld.

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    George Raymond Devine v. Tracy A. Hand, Warden, Kansas State Penitentiary, 287 F.2d 687, 10th Cir. (1961)

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    This document is a court case from 1961 in which George Devine appealed the denial of his petition for a writ of habeas corpus after being convicted of burglary and larceny in Kansas state court. The appellate court affirmed the denial, finding that while Devine was forcibly brought to Kansas from Missouri, this did not invalidate his conviction. The court also found that although the trial court did not explicitly state Devine's right to counsel, the written waiver he signed showed he understood his rights and knowingly pled guilty without a lawyer. Therefore, his constitutional procedural rights were upheld.

    Original Description:

    Filed: 1961-01-24 Precedential Status: Precedential Citations: 287 F.2d 687 Docket: 6565_1

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    This document is a court case from 1961 in which George Devine appealed the denial of his petition for a writ of habeas corpus after being convicted of burglary and larceny in Kansas state court. The appellate court affirmed the denial, finding that while Devine was forcibly brought to Kansas from Missouri, this did not invalidate his conviction. The court also found that although the trial court did not explicitly state Devine's right to counsel, the written waiver he signed showed he understood his rights and knowingly pled guilty without a lawyer. Therefore, his constitutional procedural rights were upheld.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    10 views3 pages

    George Raymond Devine v. Tracy A. Hand, Warden, Kansas State Penitentiary, 287 F.2d 687, 10th Cir. (1961)

    Uploaded by

    Scribd Government Docs
    This document is a court case from 1961 in which George Devine appealed the denial of his petition for a writ of habeas corpus after being convicted of burglary and larceny in Kansas state court. The appellate court affirmed the denial, finding that while Devine was forcibly brought to Kansas from Missouri, this did not invalidate his conviction. The court also found that although the trial court did not explicitly state Devine's right to counsel, the written waiver he signed showed he understood his rights and knowingly pled guilty without a lawyer. Therefore, his constitutional procedural rights were upheld.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    of 3

    287 F.

    2d 687

    George Raymond DEVINE, Appellant,


    v.
    Tracy A. HAND, Warden, Kansas State Penitentiary, Appellee.
    No. 6565.

    United States Court of Appeals Tenth Circuit.


    Jan. 24, 1961.

    Sheldon E. Friedman, Denver, Colo., for appellant.


    J. Richard Foth, Topeka, Kan. (John Anderson, Jr., Topeka, Kan., on
    brief), for appellee.
    Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN,
    Circuit judges.
    MURRAH, Chief Judge.

    This is an appeal from the District Court's denial of Devine's petition for a writ
    of habeas corpus, filed after having exhausted his state remedies.

    He was convicted of burglary and larceny in a Kansas state court, upon a plea
    of guilty, and is presently in that State's penitentiary.

    His first contention is that he was forcibly brought from Missouri for trial in
    Kansas, without being properly extradited, in violation of due process under the
    Fourteenth Amendment; and that his conviction was therefore a nullity. But, '*
    * * the power of a court to try a person for crime is not impaired by the fact that
    he had been brought within the court's jurisdiction by reason of a 'forcible
    abduction.' * * * There is nothing in the Constitution that requires a court to
    permit a guilty person rightfully convicted to escape justice because he was
    brought to trial against his will.' Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct.
    509, 511, 96 L.Ed. 541. Due process under the Fourteenth Amendment is
    satisfied when one charged with a state offense is tried in a state court of
    competent jurisdiction 'in accordance with constitutional procedural
    safeguards,' i.e., established modes of procedure. Id. See Odell v. Hudspeth, 10

    Cir., 189 F.2d 300; Alexander v. Daugherty, 10 Cir., 1960, 286 F.2d 645.
    4

    The petitioner contends, however, that he was not accorded constitutional


    procedural safeguards under applicable Kansas law, particularly G.S.Kansas
    1949, Sec. 62-1304, which provides in material part that 'If any person about to
    be arraigned upon an indictment or information for any offense against the laws
    of this state be without counsel to conduct his defense, it shall be the duty of the
    court to inform him that he is entitled to counsel, and give him an opportunity
    to employ counsel of his own choosing, if he states that he is able and willing
    to do so. * * * If he is not able and willing to employ counsel, and does not ask
    to consult counsel of his own choosing, the court shall appoint counsel to
    represent him unless he states in writing that he does not want counsel to
    represent him and the court shll find represent him and the court shall find
    objection will not be to his advantage.' The manifest and laudable purpose of
    this statute is to provide a procedural safeguard for due process by imposing,
    upon a Kansas sentencing court, the inescapable duty to ensure the substantive
    right of an accused to the effective assistance of counsel at every step of the
    proceedings against him, unless he voluntarily and competently waives such
    right, and the court finds that the assistance of counsel would not be
    advantageous. Compliance with these 'primary rights of an accused' is
    jurisdictional to the acceptance of a guilty plea. Ramsey v. Hand, 185 Kan. 350,
    343 P.2d 225. And, compliance is therefore requisite to due process. Alexander
    v. Daugherty,supra; Odell v. Hudspeth, supra; Amrine v. Tines, 10 Cir., 131
    F.2d 827. Cf. the duty of federal sentencing courts under the Sixth Amendment
    to the Constitution in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92
    L.Ed. 309; Snell v. United States, 10 Cir., 174 F.2d 580; Cherrie v. United
    States, 10 Cir., 179 F.2d 94.

    The record shows that upon arraignment the court carefully read and explained
    the charges and penalties therefor to the petitioner and then said to him: 'Now
    the Court has discussed with you the crimes with which you are charged, and
    the pendalties, in the event of a plea of guilty or a conviction of said crimes,
    and the court now inquires of you as to whether or not you have an attorney-- a
    lawyer-- to represent you, or if you want the court to appoint an attorney for
    you.' Whereupon petitioner replied, 'I will waive counsel, your Honor.' He then
    signed a written waiver in which he stated: '* * * I have been advised by the
    court as to the nature of the offenses with which I stand charged, and the
    penalties prescribed by law in the event of a conviction thereof or a plea of
    guilty thereto, and the further fact that by reason of my financial inability to
    employ counsel that I have the right to be represented in this action by counsel
    to be appointed by the court, and with full knowledge of these facts I do hereby
    give the court to understand and be informed that I do not desire to be

    represented by counsel, and request the court to accept my plea * * *.' The
    court then addressed the accused saying, 'Mr. Devine, there has just been
    presented to me-- handed to the court, here, a waiver of appointment of counsel
    in writing. Do you know the contents of the instrument?' The accused replied,
    'Yes, sir.' The court continued, 'And do you think you are familiar with its
    contents?' The accused answered 'Yes, sir' and the court then said 'Very well.
    Let the record show that the court finds that the appointment of counsel for the
    defendant would not be to his advantage.'
    6

    It may be that the state trial court did not specifically, and in so many words,
    inform the accused of his statutory right to the assistance of counsel. But the
    written waiver did emphatically so inform the petitioner and it is manifestly
    plain that the accused did know and understand his rights to the assistance of
    counsel and with such knowledge did understandingly enter his plea of guilty to
    the charges against him. It is plain, therefore, that the accused was accorded a
    fair hearing in a court of competent jurisdiction in accordance with
    constitutional procedural safeguards.

    The judgment is affirmed.

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