Gеrald D. Peterson, (hereafter referred to as “defendant") entered a plea of guilty on January 8, 1954, to stealing an autоmobile and was sentenced to imprisonment for a term of three years. He served that sentence and is now confined in the United States Penitentiary at Leavenworth, Kansas. He has filed in the Circuit Court of Buchanan County what is captioned “Writ of Error and Habeas Corpus” in which he challenges the validity of his plea of guilty on the basis that the plea was entered as the result of a threat by the prosecuting attorney that if he did not plead guilty he would “personally see to it” that defendant rеceived a sentence of twenty years, and because he was “intimidated” to plead guilty because the prosecutor refiled a charge of burglary and larceny against him. He also asserts that the trial judge did not comply with the provisiоns of Rule 25.04, V.A.M.R., and ascertain that his plea was voluntarily and understandingly made.
We first note that the defendant served the sentence before the present motion was filed. Therefore, he is not in custody under the sentence he now challenges, and for that reason the procedure for postconviction review provided for by Rule 27.26, V.A.M.R., is not available to
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him. In addition, he is now in confinement in a federal penitentiary outside of the State of Missouri, and even if the sentence had not bеen served he could not request relief pursuant to Rule 27.26. Lalla v. State, Mo.,
In State v. Stodulski, Mo.,
Regardless of the proper scope of such a writ, we shall consider all the contentions advanced by defendant in his motion.
Dеfendant was not present at the hearing. His counsel stated to the court that he had been unable to have defendаnt brought from the federal penitentiary to Buchanan County for the hearing, and that he “thought it best, with the court’s approval [that] we take up the matter” without the presence of defendant. Defendant’s counsel also advised the court that he had requested defendant to provide him “with additional facts he thought would be relevant to his motion, and he reported he felt he had set forth sufficient facts in his original writ of error and habeas corpus.” The trial court stated that the allegations in defendant’s motion would be received “as if it were testimony presented by the plaintiff here in person.”
It appears that a charge of burglary and stealing had been filed against defendant, but in order for him to enter the military service that charge was dismissed. However, defendant got into trouble while in the military service and was later released with a discharge othеr than honorable. He was then charged with stealing an automobile, and the prosecuting attorney refiled the burglary and stealing charge. After a plea of guilty was entered to the charge of stealing an automobile, the burglary and stealing сharge was again dismissed.
At the hearing defendant’s counsel and the prosecuting attorney testified. We need not detail thеir testimony, but in substance they refuted the allegations of defendant in his motion pertaining to a threat of twenty years if he did not plead guilty.
The trial court first noted that defendant had served the sentence he sought to attack. It then found that defendant’s attorney had advised him of the nature of the charge against him before he entered his plea of guilty. It also found that while thеre was doubt that he was threatened with a twenty year sentence, even if he had been, that was less than could have bеen imposed for the charges then pending against him, and there was no improper intimidation or threat which brought about defendant’s plea.
The prosecuting attorney admitted he told defendant that if he went to trial he would prosecute him in еvery pending case. This was not improper if it was the prosecutor’s intention to do so. It fairly advised defendant what he wаs faced with, and it would have been misleading for the prosecutor not to have so advised defendant. There is no contention that the charge of burglary and stealing was not justified, and the fact that defendant was faced with more than one сharge cannot constitute improper “intimidation” for him to enter a plea of guilty to one of the charges.
Defеndant ■ contends that the judgment of the trial court was erroneous because he was not present at the hearing of his mоtion as required by Rule 27.26(g). First, if this was a hearing pursuant to
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Rule 27.26, the motion must be dismissed for the reasons previously stated. Second, a writ оf error coram nobis is a civil proceeding, and no rule, statute or constitutional provision requires the presenсe of defendant, Abrams v. Commonwealth of Kentucky, Ky.,
Defendant also contends that the findings and conclusions of the trial court were not in compliance with Rule 27.26 (i) in that thе court did not make findings relating to whether at the time of his plea of guilty the court determined that it was voluntarily and understandingly madе. Again we note, if defendant’s motion be considered to be made pursuant to Rule 27.26 it would have to be dismissed. However, even though the trial court does not comply fully with Rule 25.04, V.A.M.R., if in fact the plea was voluntary and made with an understanding of the nature of the charge, no manifest mis justice could have resulted. State v. Mountjoy, Mo.,
The trial court’s findings are not clearly erroneous.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.