Opinion
No. 47,284
Opinion filed January 26, 1974.
MEMORANDUM OPINION
CRIMINAL LAW — Motion to Vacate — Evidentiary Hearing and Counsel Unnecessary — Constitutionality.
Appeal from Sedgwick district court, division No. 3; B. MACK BRYANT, judge. Opinion filed January 26, 1974. Affirmed.
Marvin C. Pendergraft, of Wichita, argued the cause and was on the brief for Appellant.
Clifford L. Bertholf, assistant district attorney, argued the cause, and R.K. Hollingsworth, assistant district attorney, Vern Miller, attorney general and Keith Sanborn, district attorney, were with him on the brief for Appellee.
This is an appeal pursuant to K.S.A. 60-1507, challenging petitioner's 1968 convictions for robbery and unlawful possession of firearms, and the resulting sentences imposed under the Habitual Criminal Act, K.S.A. 21-107a.
Careful consideration has been given to the record, briefs, and questions raised by the petitioner, and they are disposed of as follows:
1. The record conclusively shows the appointment of counsel and evidentiary hearing on petitioner's application for relief under K.S.A. 60-1507 were unnecessary.
2. The district court's finding the petitioner's complaints had been "laid to rest in the case of State v. Henderson, 205 Kan. 231 (1970)" met the requirements of supreme court Rule 121 ( j); and further, the petitioner had not been prejudiced by the lack of more elaborate findings.
3. Except for the claim that K.S.A. 21-107a is unconstitutional (made here for the first time) petitioner's claims of error and denial of due process were thoroughly presented, considered and disposed of in his appeal reported as State v. Henderson, 205 Kan. 231, 468 P.2d 136, and are not now subject to review either in the district court or in this appeal.
4. Though not briefed and presumably abandoned, the claim in petitioner's "Questions Raised" that K.S.A. 21-107a is unconstitutional, is noted and considered. The claim is that the "title to chapter 178, 1939 Session Laws, is defective." We find no merit in this contention.
For reasons stated above, the judgment of the court below is affirmed.