Arley C. Browning v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee, 356 F.2d 178, 10th Cir. (1966)
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Scribd Government DocsArley C. Browning v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee, 356 F.2d 178, 10th Cir. (1966)
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Scribd Government Docs356 F.
2d 178
Arley C. BROWNING, Appellant,
v.
Sherman H. CROUSE, Warden, Kansas State Penitentiary,
Lansing, Kansas,Appellee.
No. 8191.
United States Court of Appeals Tenth Circuit.
Feb. 9, 1966.
Jordan Hochstadt, Denver, Colo., for appellant.
Richard H. Seaton, Asst. Atty. Gen. (Robert C. .londerholm, Atty. Gen.,
of Kansas, and Park McGee, Asst. Atty. Gen., of Kansas, on the brief), for
appellee.
Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The district court denied habeas corpus relief to appellant Browning, a prisoner
in the Kansas State Penitentiary. Our concern is with a life sentence as an
habitual criminal.1
In January, 1957, after a jury trial, Browning received a variety of sentences all
of which have been served except the life term. He unsuccessfully appealed
from his convicton and thereafter made many attempts to secure postconviction relief in both state and federal courts.2
On his first appeal to this court 3 we rejected the claim that the life term was
invalid because of procedural deficiencies. On his second appeal4 Browning
asserted that the two prior felony convictions on which the habitual criminal
charge was based were void because of contitutional defects. We declined to
consider the point because other sentences had not been served.
After our second decision, Browning filed a petition in state district court for
relief under K.S.A. 60-1507, the state's equivalent of 28 U.S.C. 2255. The state
court held that the two prior felony convictions were valid and that the
sentences were proper. The pending habeas petition was then presented to the
federal district court. A hearing was held at which all parties relied on the
record made in previous federal habeas proceedings.
5
The two felony convictions relied on to sustain the habitual criminal charge
were a 1943 Missouri conviction for robbery and a 1950 Oklahoma conviction
for armed robbery. The district court held that the Missouri conviction was
void because Browning, then 17 years old, was not represented by counsel. 5
The warden does not attack this determination. The court upheld the Oklahoma
conviction, finding that the appellant had been advised of his right to counsel.
On the basis of the validity of the Oklahoma conviction the court concluded
that Browning was subject to sentence as a second offender to a term of 20 to 42
years;6 that the excessive portion of the sentence was severable from a proper
sentence; and that Browning was not entitled to release. 7
In the Oklahoma case appellant pleaded guilty to a charge of robbery with a
firearm punishable by death or imprisonment.8 The right of an accused in a
capital case to have the aid of counsel is guaranteed by the Fourteenth
Amendment.9 This right is also assured by the Oklahoma statutes.10 Appellant
testified unequivocally that he had not been advised of his right to counsel and
had not been afforded counsel. To rebut this the warden presented a certified
copy of the Oklahoma court docket and an affidavit by the sentencing judge.
The only pertinent docket entry reads:
'Deft. each present in court (Browning was charged jointly with one Snyder) in
person, duly arraigned and advised of their rights and each enter his plea of not
guilty.'
The affidavit concludes thus:
'As I said above, I have on independent recollection of Mr. Browning's case. It
is my opinion, however, that I did advise him of his right to counsel for I can
remember no case in which I did not follow such procedure.'
The question is whether a docket entry referring generally to 'rights' without
specifying what rights and an affidavit stating a practice are sufficient to sustain
the district court's finding that the appellant was 'advised of his constitutional
rights and his right to be represented by counsel.' We believe that it is not.
Appellant's testimony was positive and unimpeached by cross-examination.
The indefinite and inconclusive showing made by the warden casts only a
conjectural and insubstantial doubt on its verity. The testimony 'may not be
disregarded, even though adduced from interested witnesses, and no question of
credibility or issue of fact is presented for determination' by the trier of the
facts.11 The situation is either that Browning was not properly advised of his
constitutional and statutory rights in the Oklahoma proceedings or that the
Oklahoma court did not keep a complete record of those proceedings. When a
record fails to show affirmatively that the required safeguards are provided,
their existence may not be inferred from a general statement of a practice. Even
if Browning was advised of his right to counsel, nothing in the record, and no
finding by the district court, establishes that he knowingly and voluntarily
waived that right. In our opinion the Oklahoma conviction was void and subject
to collateral attack in the federal habeas proceedings.
10
Because of the invalidity of the habitual criminal sentence, the robbery charge
on which it was based must be considered as a first offense, the term for which
is 10 to 21 years.12 The life term is separable from the permissible statutory
term of years. The sentencing court had jurisdiction over the person of
Browning and over the offense. In United States v. Pridgeon, 153 U.S. 48, 62,
14 S.Ct. 746, 751, 38 L.Ed. 631, the Supreme Court said:
11
'* * * the imposition of a sentence in excess of what the law permits does not
render the legal or authorized portion of the sentence void, but only leaves such
portion of the sentence as may be in excess open to question and attack.'
12
Kansas has recognized this principle.
13
In Loftis v. Amrine, 152 Kan. 464, 105 P.2d 890, it was held that the
imposition of a 20-year sentence when the statute violated prescribed a
sentence not to exceed 10 years did not result in a void sentence. Our own
decisions are in accord.13
14
The district court found that the potential release date for Browning on a 21year sentence would be April 19, 1969. It follows that the present detention of
Browning is lawful and he is not entitled to habeas relief.14
15
Affirmed.
G.S.Kan.1949, 21-107a and 21-109. See also State v. Liebeno, 163 Kan. 421,
183 P.2d 419, 423. The district court held that three sentences for first degree
robbery were invalid under Kansas law. Neither party attacks that determination
and in any event such 15-year sentences have been served
2
These are listed in our opinion in Browning v. Crouse, 10 Cir., 327 F.2d 529
Browning v. Hand, 10 Cir., 284 F.2d 346, certiorari denied 369 U.S. 821, 82
S.Ct. 833, 7 L.Ed.2d 786
Browning v. Crouse, 10 Cir., 327 F.2d 529
See Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
G.S.Kan.1949, 21-107a
Browning's potential release date from a 20 to 42-year sentence is June 19,
1981
O.S.1941, 21-801
Powell v. State of Alabama, 287 U.S. 45, 68-71, 53 S.Ct. 55, 77 L.Ed. 158
10
O.S.1941, 22-464
11
Nicholas v. Davis, 10 Cir., 204 F.2d 200, 202. See also Potucek v. Cordeleria
Lourdes, 10 Cir., 310 F.2d 527, 531, certiorari denied 372 U.S. 930, 83 S.Ct.
875, 9 L.Ed.2d 734
12
G.S.Kan.1949, 21-527 and 21-530
13
See McKinney v. Finletter, 10 Cir., 205 F.2d 761, 763; and Fields v. Hunter, 10
Cir., 167 F.2d 547, 548
14
McNally v. Hill, 293 U.S. 131, 139, 55 S.Ct. 24, 79 L.Ed. 238
