¶1concurring: I fully agree with the opinion written for the- court on the point presented. It would be unfair to the trial court, however, to terminate the opinion at this point, and when considered in connection with recent decisions of this court, would be intellectually dishonest.
¶2One of the reasons assigned by the trial court for denying the petitioner’s motion was stated when it overruled the petitioner’s motion for rehearing in the 1507 proceeding. It said:
“The Court will find that much of the testimony which would be offered is shown by the record, and that the uncorroborated testimony of the petitioner is not sufficient to alter the judgment, and the motion for rehearing will be overruled.”
¶3It must be conceded that in proceedings conducted pursuant to K. S. A. 60-1507, the burden of proof is never sustained by the unsupported and uncorroborated statements of the petitioner. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799, and Supreme Court Rule No. 121 [g].)
¶4A recent decision of this court based squarely upon this point is Webb v. State, 195 Kan. 728, 408 P. 2d 662. There the petitioner was not present at the hearing in the district court on his 1507 motion, but he was represented by court-appointed counsel in the 1507 proceeding, as in the instant case. It was there recognized the sentencing court had discretionary power to ascertain whether the claim of the petitioner was substantial before granting a full evidentiary hearing and requiring him to be present. On the record presented the trial court found the claim of the petitioner was not substantial, and this court, in reviewing the record which was before the trial court in the 1507 proceeding affirmed its decision and recognized that the burden of proof is never sustained by the unsupported and uncorroborated statements of the petitioner.
¶5*242It is therefore necessary, in my opinion, to distinguish the Webbcase from the situation presented by the instant appeal to avoid any semblance of conflict between these decisions.
¶6The record in the instant case discloses that counsel stipulated the petitioner would testify that he had no notice whatsoever until right at the sentencing. They further stipulated that the record of the trial in the criminal proceeding pertaining to the sentencing of the petitioner should be considered in evidence.
¶7It cannot be said the reason assigned by the trial court for overruling the motion for rehearing would be unavailing had the issue before it in the 1507 proceeding been one other than notice. On some other issue the fact that the trial court may have determined the issue to be substantial and heard evidence, as in the instant case, could be immaterial, if from the record disclosed on appeal the point presented had no substantial merit as a matter of law in the 1507 proceeding.
¶8For the reasons hereafter assigned, Rule No. 121 (g) can have no application upon the issue here presented. Here the petitioner is attacking the sentence on the ground that he had no notice prior to the sentence that the state intended to invoke the provisions of the habitual criminal act. As stated in the opinion for the court, the sentencing court may impose the enhanced penalty under the habitual criminal act only upon the basis of a supporting judicial determination of the essential facts made after the defendant in the criminal case has been notified and heard upon the issue of his prior convictions. Failure to comply with such procedure is a denial of due process of law and makes the enhanced penalty a legal nullity.
¶9This point was raised in United States v. Claudy, 204 F. 2d 624 (3rd Cir. 1953), where the court said:
“. . . Even in civil cases where a personal judgment has been entered without according the defendant reasonable notice and opportunity to be heard, the state may not dilute the requirements of due process by requiring the defendant thereafter to show as a condition precedent to the vacating of the judgment that he has a substantial defense. Coe v. Armour Fertilizer Works, 1915, 237 U. S. 413, 35 S. Ct. 625, 59 L. Ed. 1027. Cf. Griffin v. Griffin, 1946, 327 U. S. 220, 66 S. Ct. 556, 90 L. Ed 635. Thus, regardless of the merits, the establishment of the essential issues in a civil or criminal case must be after reasonable notice and opportunity to be heard if the procedure is to meet the standards of due process.” (p. 627.)
¶10Thus, on the point here under consideration whether the petitioners contentions as to notice are corroborated or not is im*243material. It is only after reasonable notice (absent a waiver) and an opportunity to be heard that the court is empowered to pronounce the enhanced penalty under the habitual criminal act. This is a fundamental requirement of due process.
¶11Even if it be assumed that the record must disclose corroborating evidence, the journal entry of the criminal proceeding wherein the petitioner was sentenced discloses that the record of the petitioner’s prior convictions was introduced after the allocution. (See, State v. Woodman, 127 Kan. 166, 272 Pac. 132; and State v. Engberg, 194 Kan. 520, 400 P. 2d 701.) This fact, however, does not forego a decision in the trial court on the issue to be determined. When the entire record is presented and the evidence is before the trial court after a full evidentiary hearing, it may be sufficient to uphold a finding that the petitioner did, in fact, have sufficient notice that the state intended to invoke the habitual criminal act prior to sentencing, or that the petitioner waived such notice.
¶12There is some indication in the record that the petitioner may have waived the required notice.
¶13Be that as it may, the trial court in a proceeding such as this under 60-1507, supra, is the sentencing court, and has been given the power of discretion to ascertain whether the petitioner’s claim is substantial. In proceedings of this kind the sentencing court is in a favored position.