dissenting: I am not concerned over the failure to have counsel appointed for petitioner at the time of his preliminary examination. This court has consistently held that the preliminary hearing is not a critical stage in the trial process (see cases cited in the courts majority opinion) and I see nothing in the circumstances of this case which would warrant any deviation from our previous holdings.
Nor do I discern any infringement upon the petitioner’s basic rights simply because he negotiated with the county attorney without benefit of counsel. This is a common practice, frequently employed by habitual offenders. No reason is suggested why this conviction should be set aside merely because the accused may have jockeyed with the prosecutor for a favorable position.
So far as the record discloses, the petitioner was deprived of no substantial right because of his dealings with the prosecutor’s staff. This is not a case where it appears that the petitioner was prejudiced or that some fundamental or constitutionally guaranteed right was denied him because of such negotiations. Had it developed that, after petitioner was refused counsel, a confession or any incriminating statement was obtained through the negotiation process and had an attempt then been made to use that confession or statement against petitioner, a different problem might be posed.
In my judgment, a more serious question is presented in connection with the second finding of the trial court. This finding is as follows:
“The defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court of June 28, 1963.”
*493Under our long-established and well-defined rule, we are not at liberty to disregard this finding, if there is any substantial, competent evidence on which it can be sustained. (Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
From the evidence quoted by Justice Schroeder in his dissenting opinion, it appears evident that the petitioner s legal representation in district court at the time of his arraignment and plea of guilty was casual at best. This is no reflection upon the professional ability or integrity of Mr. Loftus, who was appointed to represent the petitioner, for he was provided the scantiest opportunity to advise with his client.
The record discloses that counsel was not appointed for the petitioner until he and two other prisoners were brought into court for their arraignment, and that Mr. Loftus was thereupon appointed to represent all three men. The only consultation had between Loftus and the petitioner took place in the presence of the other two prisoners while all three were seated on a bench in the courtroom. The petitioner testified that he spoke with Loftus for approximately twenty to thirty seconds at four different times, while Loftus himself testified that this “was all very rapid.” As shown by the record, Mr. Loftus also testified as follows:
“We did not discuss his offense at all, because he was talking then about pleading guilty. When I found out that he had a previous conviction for the same particular crime, it was my estimation then that he knew pretty well what his constitutional rights were concerning this particular crime.”
I cannot believe that this is the sort of representation by counsel contemplated by G. S. 1961 Supp., 62-1304 (now K. S. A. 62-1304). A procedure which precludes more than a token representation of an accused by his appointed counsel clearly fails to measure up to the purpose and requirements of our statute as well as to the constitutional requirements of due process.
No attorney, appointed at the last minute to represent a defendant about to be arraigned and who has no opportunity to consult with his client fully and freely in private, can satisfactorily advise and counsel with his client, no matter how competent a lawyer he may be. A prisoner, whose counsel has been appointed only to take his client through the formalities and to give effect to a deal already made with the county attorney, can hardly be said to have been provided counsel to inform him of and to protect his constitutional rights.
*494However, I do not approve o£ or agree with the action of the trial court in ordering the petitioner discharged from imprisonment. The error which I believe inhered in the proceedings leading up to and continuing through the arraignment and sentencing of the petitioner cannot be said to justify his complete exoneration, or his absolute release. In all justice, such error should require only that the sentence be set aside and the petitioner granted a trial, not that the petitioner escape trial entirely.
In Dunfee v. Hudspeth, 162 Kan. 524, 178 P. 2d 1009, this court held:
“In habeas corpus proceedings by an inmate of the state penitentiary, where the record discloses a plea of guilty and sentence under circumstances not in accord with due process of law, the plea and sentence are set aside and the petitioner is remanded to the trial court for further proceedings in harmony with law.” (Syl. ¶ 2.) <-
In my view, a similar disposition should be made of this appeal.
K. S. A. 60-1507 (b) provides in part:
“. . . If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or, grant a new trial or correct the sentence as may appear appropriate.”
To me, it seems wholly inappropriate for the trial court, after vacating the sentence, to have ordered the petitioner discharged. In my judgment, the appropriate action would have been to grant him a new trial.
In my opinion, the record contains substantial, competent evidence to support the trial court’s second finding. For this reason, I respectfully dissent from the majority opinion and I would remand this case with directions that further proceedings be had, in harmony with die views herein expressed and as provided by law.