576 S.W.2d 571 | Mo. Ct. App. | 1979
On February 28, 1977, Appellant-Movant entered a plea of guilty to an amended charge of first-degree robbery. He was sentenced by the trial court to a term of 15 years in the Department of Corrections. Movant’s motion under Rule 27.26, V.A. M.R., was filed May 2, 1977. Movant appeals from the trial court’s denial of his motion to vacate the sentence following an evidentiary hearing on August 22, 1977.
In his first point on appeal, movant contends that the trial court erred in denying his motion because the judgment was entered on an involuntary guilty plea induced by his believing that if he pleaded guilty he would receive a sentence of from 7 to 13 years and possibly probation.
This court’s review in a post conviction proceeding is limited to determining whether the findings, conclusions and judgment of the trial court are “clearly erroneous.” Rule 27.26(j), V.A.M.R.; Brown v. State, 495 S.W.2d 690, 694[2] (Mo.App.1973); Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977); State v. Vitale, 566 S.W.2d 836[1] (Mo.App.1978). The decision of the trial court is “clearly erroneous” only if, after review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.App.
In support of his first point, mov-ant testified at his 27.26 hearing that his attorney Stephen P. Seigel, told him, prior to his pleading guilty that if he pleaded guilty he would receive a sentence of no more than 13 years and possibly probation. Movant also testified that his attorney told him to answer the questions of the sentencing judge in the negative in order for the court to accept his guilty plea. Movant’s attorney, however, testified that he told his client that the State would, on his pleading guilty, recommend to the court a sentence of 13 years, but that the judge was not bound by the State’s recommendation and could sentence him from five years to life imprisonment. In regard to possible probation, Attorney Seigel stated that he advised the movant that the judge always had the option to grant a parole but that he didn’t feel that in this case movant could expect a parole because of his past record and the nature of this charge.
It should be noted that the case of Schellert v. State, 569 S.W.2d 735, recently decided by the Supreme Court of Missouri, could have been the basis for this case being remanded back to the trial court for the entry of a new plea. That case holds that a trial court should afford a criminal defendant the opportunity to withdraw a plea of guilty in any case in which the trial judge determines not to follow the plea agreement or recommendation of the State. The Supreme Court, however, specifically provided that its decision in Sehellert was to apply to that case and prospectively only.
In his second point on appeal, mov-ant contends that the trial court erred in denying his 27.26 motion because he was denied effective assistance of counsel. Movant alleges that he informed his attorney prior to his guilty plea of certain alibi witnesses and that his attorney failed to properly investigate and determine the propriety of an alibi defense. Movant further alleges that he told his attorney that he was
Inasmuch as the judgment and sentence are based upon a plea of guilty, the issue of counsel’s adequacy is material only to the extent that it bears on the voluntariness and understanding of the plea. Barylski v. State, 473 S.W.2d 399, 402 (Mo.App.1971); Bennett v. State, supra. Here the movant is bound by his plea unless he can allege and prove serious dereliction on the part of his counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.
The movant testified at his 27.26 hearing that he told his attorney that he was not guilty and he wanted his step-mother, Marcella Fellers, called as a witness to establish his alibi that he was home at the time of the robbery. Movant denied that he told anyone that he was guilty. In contradiction to this testimony, Attorney Seigel stated that the movant did admit at all times that he had committed the robbery but that he had used a blank gun and would not plead guilty to robbery by means of a dangerous and deadly weapon.
The judgment is affirmed.
FLANIGAN, P. J., STONE and TITUS, JJ., and MOORE, KENNEDY and CAMPBELL, Special Judges, concur.
. It should be noted that the movant was charged in the amended information as a second offender and entered a plea of guilty thereto. His previous conviction was for felonious stealing in 1958.
. The State did amend the original charge from first-degree robbery by means of a dangerous and deadly weapon to first-degree robbery, to which the defendant pled guilty.