499 S.W.2d 569 | Mo. Ct. App. | 1973
Before the 1971 amendment to § 195.200, RSMo. 1969, V.A.M.S., subsection 4 thereof provided that “No parole, probation, suspended sentences or any other form of judicial clemency may be exercised in behalf of any person punished under subdivision (2), (3), (4) or (5) of subsection 1 of this section.” The 1971 amendment removed the restriction against granting probation or parole where the person was punished under subdivision (4) for selling a controlled substance as was appellant here upon his plea of guilty whereupon his sentence was for the minimum five years imprisonment in the Department of Corrections on October 7, 1970.
On his motion under Rule 27.26, V.A.M. R., filed January 18, 1972, appellant seeks to be permitted to withdraw his plea of guilty upon the ground that he was misled into so pleading by the mistake of his counsel in advising him that he would be eligible for parole or probation when in fact the then provision of the statute prohibited that disposition by the court.
Counsel for appellant at the time the plea was entered did not testify in the Rule 27.26 hearing. Appellant testified: He conferred with counsel and discussed the matter of pleading guilty. “A. Well, it was in regard that he advised me to. enter a plea of guilty on the basis that there had been a number of other drug cases in Randolph County at that time and the majority of them had gotten lenient judgments, so he felt if I entered a plea of guilty he would somewhat — not exactly guarantee, you know, not as far as the word guarantee, but he felt it was a sure thing that I could receive a similar judgment as far as probation or parole, bench parole or probation. Q. In other words he felt you had a fairly good chance of being granted probation by the judge? A. Yes, sir. * * * Q. Now in all of these conferences, as I understand your testimony, Mr. Henderson stated that he felt that you had a fairly good chance of being granted probation by the court? A. Yes, he stated more than a fairly good chance, it was an overwhelming chance.” Counsel never did tell appellant, prior to the plea of guilty, that the statute under which he was pleading guilty did not allow the judge to grant him probation. The first time he learned of the restriction upon probation or parole was when he was told of it by the judge (after the plea was accepted and sentence was imposed).
On cross-examination (and as also revealed by the record at the time the plea was given) appellant acknowledged that the court explained to him what the charge against him was — “sale of cannabis, which is marijuana”, and he understood the charge. The court told him what the amount of punishment could be, “I know it is a minimum of five years and I don’t know what the maximum is, but I am sure that he did explain this to me.” The court asked him if he had been promised anything in order to get him to plead guilty, and “I told him that I hadn’t been made any promises.” The same answer was given by appellant as to anyone having threatened him. The court also explained that “by pleading guilty I waived the right of trial by jury and the whole decision was up to the judge.”
Appellant’s maternal grandmother, Mrs. Gertrude Garth, testified that she talked with his counsel on the telephone. Counsel told her that if appellant pleaded guilty the most he would get would be two years, and he might get probation. If he did not get probation it would be no later than spring when he would be paroled.
The record of the taking of appellant’s plea shows further that his counsel stated to the court that the minimum sentence was five years and, “I am satisfied that if any relief were granted by this Court that the threat of a five-year internment in the penitentiary of Department of Corrections
The court found that appellant, who was out on bond, conferred with his counsel several times before the case was set for trial. That counsel advised appellant to plead guilty and told him he had a fairly good chance of getting probation, and that appellant testified that his attorney never told him that under the then existing law that the court could not grant probation in his type of case and the first he knew of it was after he pleaded guilty and was sentenced by the court. The court further found that the court, at the time appellant entered his plea of guilty, advised him of his rights, to stand trial before a jury, to confront the state’s witnesses, the range of punishment, and also whether anyone had promised him anything. Appellant denied to the court that any promises had been made to him or that anyone had told him that they knew what punishment might be assessed; and told the court that he entered his plea of guilty because he felt he did not have a defense. The court further found that appellant did not enter his plea of guilty as a result of improper legal advice giving him hope of probation and that the court did not in any way mislead or misrepresent to him that he would be entitled to receive probation.
It is clear from the facts here, as shown by the record of the taking of appellant’s plea, that both his counsel and the prosecuting attorney were laboring under the misapprehension that appellant would be eligible for probation or parole. That is apparent from counsel’s request for a pre-sentence investigation to ascertain facts for the court’s decision on the matter of probation or parole, and the prosecuting attorney’s stated lack of objection to that procedure. The only testimony bearing on the subject is that of appellant in this Rule 27.26 hearing. That testimony is to the effect that he could get probation or parole as had been granted to others with similar offenses in Randolph County, as stated to him by his counsel. It was or should have
The judgment is reversed and the cause is remanded with directions to set aside the judgment of conviction and sentence and to permit appellant to withdraw his plea of guilty and for further proceedings.
All concur.