Matthews v. StateMatthews v. State
- Reporters:
- ,
- Before:
- Houser
Marvin Matthews has appealed (prior to January 1, 1972) from a judgment overruling his 27.26 V.A.M.R., motion to vacate three concurrent life sentences entered upon pleas of guilty entered on April 29, 1963 to two charges of forcible rape and one charge of assault with intent tо ravish with malice aforethought.
Appellant’s first point is that the findings of the circuit court are clearly erroneous in ruling that the pleas of guilty were voluntarily made; that appellant understood the nature of the charges and consequences of pleas of guilty; that hе was not misled by promises and had ample opportunity to discuss the three charges with his attorney; and that he admitted the facts constituting the three crimes charged. He argues that under Rule 25.04 the court shall not accept a guilty plea without first determining that the plea is madе voluntarily with an understanding of the nature of the charge; that the court did not inquire of him as to the facts leading to these charges; did not advise him that the court was not bound by recommendations made to the court; did not explain the range of punishment on the assault charge; did nоt elicit any facts from appellant’s own mouth as to what acts he had committed which constituted the crimes; did not make inquiry to determine whether he was “knowledgeable of what he was doing”; that there was a failure to comply with Rule 25.04; that the examination of appеllant was perfunctory and not carefully done to make sure that appellant was fully informed and that he understood that he was charged with three separate offenses; that he would be sentenced on all three, and the minimum and maximum punishment for each.
In addition to the transcript of the 27.26 hearing we have examined the transcript of the proceedings of April 29, 1963 at which appellant entered the three pleas of guilty. At that hearing appellant stated that he was familiar with the charges, and was specifically informed that he wаs charged with raping C- Ron December 4, 1962; with raping HM- P- on December 18, 1962 and with assault with intent to ravish H- S- on December 26, 1962. (The names were stated in full at the hearing, but are disguised here for obvious reasons.) The 1963 record further shows that appellant agreed with his attorney’s statement and inquiry in oрen court that the two had “talked about these matters at some length”; that appellant had discussed them with his stepfather “at some length”; that appellant had indicated to his attorney that he wanted to plead
While the court did not elicit from the lips of the appellant a recital of the acts he committed, this was not necessary as long as the accused understood the facts as recited by the proseсuting official. From what transpired at the hearing and from the fact that the three pleas of guilty were accepted we must credit the circuit judge with having observed accused and having come to the conclusion that the accused understood what was taking place. “That an accused understands charges with which he is confronted may be deduced from yes and no answers as well as from descriptive factual recitals by accused.” Robinson v. State, 482 S.W.2d 492, 495 [5] (Mo.1972). It is true that appellant was not told that the court was not bound by the recommendations made to the court on the matter of punishment, but this was not necessary where the court made and entered the order of concurrent life sentences appellant requested. The range of punishment on the assault charge was not stated (the court did indicate that it graded down to less than life imprisonment) but this is immaterial, since appellant himself acknowledged that he was ready to accept a life sentence on that charge. There is no prejudice in failing to advise an accused of the range of punishment where the sentence the accused is to receive is agreed upon in advance and he receives the expected sentence. Jones v. State, 471 S.W.2d 223, 228 [3] (Mo.1971). Although the court did not explain to appellant the technical elements of the offenses charged, there is no such requirement, as indicated in Jones v. State, supra, it being sufficient that accused has an understanding of the nature of the charge. Contrary to appellant’s claim, the entire inquiry was one calculated to determine whether appellant was “knowledgeable of what he was doing.” Instead of its being a perfunctory
Appellant’s claim that his pleas were involuntary is not supported by credible evidence. His contention that his guilty pleas resulted from his fear of the death penalty “does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The claim of coercion fails. The claim that his attorney promised appellant that he would only have to serve 7 or 8 years was disрuted by his attorney. The court below evidently believed the attorney and disbelieved appellant.
On this record the court’s findings and judgment on the voluntariness of the pleas and appellant’s knowledge and understanding of what he was doing are not clearly erroneous, but are fully justified.
Appellant‘s second point is that he was denied effective assistance of counsel because his attorney “failed to investigate the facts of the case by deposition of witnesses or otherwise, failed to consult with movant concerning the charges and did not explain the elements of the charge[s] to movant.” Specific complaint is made of failure to interview any witnesses in the rape cases, or to investigate the element of penetration or other element‘s of the crime; failure to investigate the reputation of the complaining witness in the assault case; failure to question the examining psychiatrist’s report or move for a hearing to contest the report and failure to try to establish incompetency to stand trial or assist in his defense and to establish legаl incompetency.
The first of the three cases set for trial was the charge of assault with intent to ravish H- S-. Counsel interviewed her in an attempt to break down her identification of appellant. He took her deposition. Counsel interviewed appellant betweеn five and ten times; discussed the situation with appellant’s mother and stepfather; interviewed the principal where appellant had been in school; reviewed appellant’s school records. He saw no point in interviewing the police officers whose names were endorsed on the information. (There was no claim that they were eyewitnesses.) Appellant provided counsel with no leads for investigation. There is nothing to indicate that appellant ever claimed to be innocent of any of the three charges. On the morning the assault case was set for trial, after the jury panel had assembled in the courtroom, appellant informed counsel that he desired to plead guilty, for the stated purpose of avoiding the death penalty. Counsel had not advised a guilty plea because he did not think a jury would assess the death penalty in the case of a 17-year-old defendant. He had intended to go to trial and force the State to prove its case. After entry of the pleas there was no occasion to further investigate the other two cases, which had not been set for trial.
Since pleas of guilty were entered the determination of the adequacy of the legal representation becomes immaterial, unless counsel was incompetent in such a manner as to affect the issues of voluntariness and understanding. Barylski v. State, 473 S.W.2d 399, 402 [2] (Mo.1971). No such showing has been made. Nevertheless, the circuit court in its memorandum made a thorough analysis of the representation afforded this appellant, pointing out that counsel is a Michigan University Law School graduate, winner of the Lon Hoсk-er Trial Lawyers’ Award, and an experienced trial attorney; that he conferred with appellant five or ten times; filed motions to produce and for a psychiatric examination in all three cases; explained the range of punishment and discussed with appеllant the charges in all three cases; interviewed the high school principal; procured appel
There is an evidentiary basis for the court’s findings and conclusions in the matter of representation. There is no basis for a claim that by more extensive investigation counsel could have discovered evidence of appellant’s innocence, or uncovered facts which would have weakened the State’s cases against appellant. Under the circumstances shown in this case counsel was not derelict in not pressing for a hearing on the question of appellant’s mental responsibility or competence to stand trial or cooperate in his own defense. While there is no evidence that counsel explained to appellant the technical elements of the offense charged, there is no such requirement, it being sufficient that the person charged has an understanding of the nature of the charge (as in the case of failure of the court to make such an explanation, Jones v. State, supra). On the whole record there has been a failure to meet appellant’s burden of demonstrating a denial of effective assistance of counsel.
The findings and conclusions of the trial court on this phase of the case are not clearly erroneous.
Judgment affirmed.
STOCKARD, C., concurs.PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.