The opinion o£ the court was delivered by
Fontron, J.:
This is an appeal by the petitioner, Eulysess M. Reid, from- an adverse judgment entered in a proceeding commenced by him -under K. S. A. 60-1507.
The chain of events giving rise to this action stretches back to October 8, 1968, when a violent incident occurred at the Kansas State Penitentiary culminating in felonious assaults on an officer and an unidentified convict. The officer, Travis Adanas, was paralyzed as a result of the attack. As an aftermath of the incident Mr. Reid and other convicts involved in the assaults were placed in the prisons Adjustment and Treatment Center at the request [299]*299of agents of the Kansas Bureau of Investigation, who had taken charge of the case.
On March 28, 1969, two charges of assault with intent to kill were filed against Reid, one charge pertaining to the assault against Mr. Adams and the other to the attack on the unfortunate inmate. Felony charges arising out of the same incident were filed against seven other convicts, as well.
A preliminary hearing was held for Redd and his seven co-defendants on April 10, 1969. The record indicates that counsel was requested by all the accused but their requests were denied. The record further discloses that the prisoners were unruly and engaged in tumultuous behavior before the examining magistrate and force was required to restrain the most obstreperous members of the group, including Mr. Reid. Despite the disorders which took place, the magistrate was ultimately able to conduct a preliminary examination at which time witnesses appeared and testified, and the defendants, including the petitioner, acted as their own counsel.
An information was filed in the district court of Leavenworth County, Kansas, on April 24, 1969, charging Reid with two counts of assault with intent to kill, and on June 5, 1969, Mr. James N. Snyder, Jr., a Leavenworth attorney, was appointed to represent him.
On December 9, 1969, Reid appeared before the district court and entered a plea of guilty to one count of assault with intent to kill while the other count was dismissed by the state. The prosecution did not introduce evidence of previous convictions and Mr. Reid was sentenced to the Kansas State Penitentiary for a period of not exceeding 10 years, the term to commence at the expiration of any sentence or sentences previously imposed against him.
The petitioners action for relief under K. S. A. 60-1507 was heard by the trial court on December 17, 1971, at which tims Reid appeared personally and was represented by Mr. E. Roger Horsky, a member of the bar of this state. At the conclusion of the evidentiary hearing, at which witnesses testified both on behalf of the petitioner and on behalf of the state, the district court, on February 8, 1972, entered its judgment denying relief.
The questions presented are set forth in petitioners brief as follows:
[300]*300“1. Did the Court err in finding that defendant failed to establish that his rights were prejudiced by not having been effectively represented by counsel throughout the proceedings?
“2. Did the Court err in finding that defendant’s plea of guilty was free and voluntary in view of defendant’s lengthy special confinement and lack of effective counsel?”
In connection with Mr. Reid’s first claim of error, the trial court found that he had failed to establish that his rights were prejudiced by not having been provided with counsel at the preliminary examination. We believe the record supports such a conclusion. This court in the past has frequently held that the preliminary examination is not a critical point in the criminal process and that, absent a showing of prejudice, the failure to provide counsel to an indigent accused at the hearing does not constitute prejudicial error. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652; Stewart v. State, 206 Kan. 147, 476 P. 2d 652.) No prejudice to Mr. Reid’s substantial rights is shown to have resulted in this case from absence of counsel at the preliminary hearing.
In Johnson v. State, 210 Kan. 498, 499, 502 P. 2d 838, we acknowledged our awareness of the decision in Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999, where for the first time the United States Supreme Court held the preliminary hearing to be a critical stage in criminal proceedings requiring assistance of counsel. However, in the later case of Adams v. Illinois, 405 U. S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916, the same august tribunal held that retrospective application was not to be given the Coleman holding. The preliminary hearing in the instant case was prior to Coleman v. Alabama, supra, and prior also to K. S. A. 1972 Supp. 22-4503, according the right to counsel at all stages of a criminal proceeding. Consequently, we adhere, in this case, to our former rule. (Johnson v. State, supra; Delano v. State, 209 Kan. 670, 674, 498 P.2d 18.)
The defendant’s principal contention, however, is that he was coerced into entering his plea of guilty. He argues that continued confinement in the Adjustment and Treatment Center, a somewhat euphemistic term for solitary confinement within the prison walls, in combination with inattentive and ineffective counsel created such a coercive atmosphere around him that his guilty plea was not freely and voluntarily entered, but was constrained.
It appears from the record that although Mr. Snyder was ap[301]*301pointed counsel on June 5, 1969, he did not visit his client in the penitentiary at any time, nor did he see his client until December 9, 1969, when Reid was brought into court and conferred with him before entering his plea of guilty. Mr. Snyder was vague about the duration of the conference; he could not say whether it was thirty minutes, an hour, or fifteen minutes.
It would seem incomprehensible that a member of the bar of this state would utterly ignore a client, indigent or not, for a period of more than six months, and we cannot but note what on the surface, and unexplained, appears to be untoward neglect. However, we are not here called upon to sit in judgment on counsel’s conduct except as it may have reacted adversely to his client’s cause. Rather, we are to determine whether the trial court’s finding "that movant’s plea of guilty was freely and voluntarily entered” finds substantial support in the record.
Our rule is well established that confinement in isolation is not in itself sufficient to sustain a finding that a plea of guilty has been entered improvidently, involuntarily, or under duress. (Knight v. State, 203 Kan. 652, 455 P. 2d 578; Lee v. State, 204 Kan. 364, 461 P. 2d 794; Davis v. State, 204 Kan. 372, 461 P. 2d 812.) Our latest decision to this effect is found in State v. Ridge, 208 Kan. 236, 491 P. 2d 900, where one of Reid’s co-defendants unsuccessfully advanced the same argument made here.
But the defendant argues in substance that he was not furnished effective assistance of counsel, and that this circumstance added to the compulsive atmosphere in which he was placed.
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The opinion o£ the court was delivered by
Fontron, J.:
This is an appeal by the petitioner, Eulysess M. Reid, from- an adverse judgment entered in a proceeding commenced by him -under K. S. A. 60-1507.
The chain of events giving rise to this action stretches back to October 8, 1968, when a violent incident occurred at the Kansas State Penitentiary culminating in felonious assaults on an officer and an unidentified convict. The officer, Travis Adanas, was paralyzed as a result of the attack. As an aftermath of the incident Mr. Reid and other convicts involved in the assaults were placed in the prisons Adjustment and Treatment Center at the request [299]*299of agents of the Kansas Bureau of Investigation, who had taken charge of the case.
On March 28, 1969, two charges of assault with intent to kill were filed against Reid, one charge pertaining to the assault against Mr. Adams and the other to the attack on the unfortunate inmate. Felony charges arising out of the same incident were filed against seven other convicts, as well.
A preliminary hearing was held for Redd and his seven co-defendants on April 10, 1969. The record indicates that counsel was requested by all the accused but their requests were denied. The record further discloses that the prisoners were unruly and engaged in tumultuous behavior before the examining magistrate and force was required to restrain the most obstreperous members of the group, including Mr. Reid. Despite the disorders which took place, the magistrate was ultimately able to conduct a preliminary examination at which time witnesses appeared and testified, and the defendants, including the petitioner, acted as their own counsel.
An information was filed in the district court of Leavenworth County, Kansas, on April 24, 1969, charging Reid with two counts of assault with intent to kill, and on June 5, 1969, Mr. James N. Snyder, Jr., a Leavenworth attorney, was appointed to represent him.
On December 9, 1969, Reid appeared before the district court and entered a plea of guilty to one count of assault with intent to kill while the other count was dismissed by the state. The prosecution did not introduce evidence of previous convictions and Mr. Reid was sentenced to the Kansas State Penitentiary for a period of not exceeding 10 years, the term to commence at the expiration of any sentence or sentences previously imposed against him.
The petitioners action for relief under K. S. A. 60-1507 was heard by the trial court on December 17, 1971, at which tims Reid appeared personally and was represented by Mr. E. Roger Horsky, a member of the bar of this state. At the conclusion of the evidentiary hearing, at which witnesses testified both on behalf of the petitioner and on behalf of the state, the district court, on February 8, 1972, entered its judgment denying relief.
The questions presented are set forth in petitioners brief as follows:
[300]*300“1. Did the Court err in finding that defendant failed to establish that his rights were prejudiced by not having been effectively represented by counsel throughout the proceedings?
“2. Did the Court err in finding that defendant’s plea of guilty was free and voluntary in view of defendant’s lengthy special confinement and lack of effective counsel?”
In connection with Mr. Reid’s first claim of error, the trial court found that he had failed to establish that his rights were prejudiced by not having been provided with counsel at the preliminary examination. We believe the record supports such a conclusion. This court in the past has frequently held that the preliminary examination is not a critical point in the criminal process and that, absent a showing of prejudice, the failure to provide counsel to an indigent accused at the hearing does not constitute prejudicial error. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652; Stewart v. State, 206 Kan. 147, 476 P. 2d 652.) No prejudice to Mr. Reid’s substantial rights is shown to have resulted in this case from absence of counsel at the preliminary hearing.
In Johnson v. State, 210 Kan. 498, 499, 502 P. 2d 838, we acknowledged our awareness of the decision in Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999, where for the first time the United States Supreme Court held the preliminary hearing to be a critical stage in criminal proceedings requiring assistance of counsel. However, in the later case of Adams v. Illinois, 405 U. S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916, the same august tribunal held that retrospective application was not to be given the Coleman holding. The preliminary hearing in the instant case was prior to Coleman v. Alabama, supra, and prior also to K. S. A. 1972 Supp. 22-4503, according the right to counsel at all stages of a criminal proceeding. Consequently, we adhere, in this case, to our former rule. (Johnson v. State, supra; Delano v. State, 209 Kan. 670, 674, 498 P.2d 18.)
The defendant’s principal contention, however, is that he was coerced into entering his plea of guilty. He argues that continued confinement in the Adjustment and Treatment Center, a somewhat euphemistic term for solitary confinement within the prison walls, in combination with inattentive and ineffective counsel created such a coercive atmosphere around him that his guilty plea was not freely and voluntarily entered, but was constrained.
It appears from the record that although Mr. Snyder was ap[301]*301pointed counsel on June 5, 1969, he did not visit his client in the penitentiary at any time, nor did he see his client until December 9, 1969, when Reid was brought into court and conferred with him before entering his plea of guilty. Mr. Snyder was vague about the duration of the conference; he could not say whether it was thirty minutes, an hour, or fifteen minutes.
It would seem incomprehensible that a member of the bar of this state would utterly ignore a client, indigent or not, for a period of more than six months, and we cannot but note what on the surface, and unexplained, appears to be untoward neglect. However, we are not here called upon to sit in judgment on counsel’s conduct except as it may have reacted adversely to his client’s cause. Rather, we are to determine whether the trial court’s finding "that movant’s plea of guilty was freely and voluntarily entered” finds substantial support in the record.
Our rule is well established that confinement in isolation is not in itself sufficient to sustain a finding that a plea of guilty has been entered improvidently, involuntarily, or under duress. (Knight v. State, 203 Kan. 652, 455 P. 2d 578; Lee v. State, 204 Kan. 364, 461 P. 2d 794; Davis v. State, 204 Kan. 372, 461 P. 2d 812.) Our latest decision to this effect is found in State v. Ridge, 208 Kan. 236, 491 P. 2d 900, where one of Reid’s co-defendants unsuccessfully advanced the same argument made here.
But the defendant argues in substance that he was not furnished effective assistance of counsel, and that this circumstance added to the compulsive atmosphere in which he was placed. This court has had a good deal to say on the subject of effective counsel, the sum total of which has been that before it can be said there has been a denial of the constitutional right to counsel, it must clearly appear that the representation afforded the accused was wholly ineffective and inadequate. (Widener v. State, 210 Kan. 234, 236, 499 P. 2d 1123; Winter v. State, 210 Kan. 597, 603, 502 P. 2d 733.) In State v. Richardson, 194 Kan. 471, 487, 399 P. 2d 799, we said:
“. . . The burden rests upon the petitioner to show that his counsel was so incompetent and inadequate in representing him that the total effect was that of a complete absence of counsel. . . .”
(See, also, Toland v. State, 200 Kan. 184, 186, 434 P. 2d 550; Shores v. State, 195 Kan. 705, 709, 408 P. 2d 608.)
[302]*302We have also said on frequent occasions that the adequacy of an attorney’s services to his client must be gauged by the totality of his representation. (Call v. State, 195 Kan. 688, 408 P. 2d 668; Davis v. State, supra; Baker v. State, 204 Kan. 607, 614, 464 P. 2d 212.)
Measured by the standards set out in the foregoing cases, we cannot stigmatize Mr. Snyder’s services to his client as being, in effect, no representation whatever. Desultory as his efforts may have been, they resulted in the dismissal of one count of assault with intent to loll and a sentence imposed without reference to the Habitual Criminal Act. Speaking realistically, it is evident that plea bargaining had been going on between opposing counsel, the net result of which was to the defendant’s considerable advantage.
After an evidentiary hearing die trial court concluded that Reid’s guilty plea was freely and voluntarily made. In making this determination the court had before it Reid’s own testimony that when pleading guilty he had advised the court that he was guilty, that his plea was being freely and voluntarily entered, that he desired the court to accept his plea and that he had no cause to show why judgment should not be pronounced. Against this firm record, Reid now explains he was not telling the truth at the allocution; that he said what his attorney told him to say; and that he did so to escape solitary confinement. Obviously the trial court, as the trier of the facts, did not accept the explanation at face value.
We find nothing in the record to indicate physical abuse or hardship which might have overcome the petitioner’s will or have coerced him into a false plea of guilty. The record reflects neither threatening behavior on the part of prison officials nor promises that Reid would be released from close confinement if he pleaded guilty. Indeed, the inference is justified that no promises of that character were made to Mr. Reid inasmuch as he was not released from segregation upon entry of his plea but was retained in the A & T Center for nearly four months thereafter.
Reid testified he was told by the Leavenworth County Attorney, Mr. Tillotson, that he would not be released from segregation until his case was disposed of, but this was categorically denied by the county attorney who stated “I would deem such a practice quite reprehensible.” Reid also stated on the stand he was informed by prison guards that the only way he could be released would be by guilty plea or when all cases were disposed of. This is not corroborated in the record, although the practice seems to have been to [303]*303segregate a prisoner at the Bureaus request and not release him until his case was completed or the Bureau gave permission to return him to the general prison population. Even so, we find nothing of record to justify a belief that such practice was essentially pernicious.
We are constrained to conclude the trial court’s findings were sustained by substantial competent evidence and its judgment must be affirmed.
It is so ordered.