*1 SMITH, Movant-Appellant, Leon Missouri, Respondent.
STATE
No. 58559. Missouri,
Bn Banc.
July 22, 1974. Sept.
Rehearing 1974. Denied
movant and set the motion for hearing. any held, Before however, was State filed a motion to dismiss which was by sustained appealed the court. Movant Appeals, to the Court of St. Louis District. adopted That court which re- versed the judgment and remanded the case with evidentiary to hold an directions and to make of fact and' Upon application conclusions of law. respondent we ordered the case transferred to this court. It will be determined here original the same appeal. as on af-We firm. alleged following
Defendant’s motion
grounds:
“1.
Ineffective assistance of
guilty
counsel. 2. Plea of
was involun-
tary, and was made under duress and coer-
incompetent
cion. 3. That movant was
to
plead
of drug
because
addiction.” As
support
to
said
he
contentions
Lawyer
stated the following: “1.
threat-
years
ened defendant with
if he
should
Lawyer
stand
investigate
trial. 2.
did not
possible defenses,
used Circuit
(only
Attorneys file)
ignored
defendant’s
claims of innocence. 3. Defendant was
discovery
poverty.
denied
due
his
to
4.
Lawyer
attorney.
was not a criminal
5.
Duress
in the-
consisted of confinement
City
jail
for 22 months. 6. Was
Jail
days
appointed.
7.
before counsel was
Defendant was frustrated in his efforts to
quashed
have the indictment
because the
Donald
Schmidt and Christopher
L.
T.
peers.
Grand
were not
8.
Hexter,
Louis,
Legal
Society
Aid
of St.
Jurors
Defendant was wounded.
Defendant
Louis,
9.
appellant.
St.
for
incompetent
plead
way
to
or the
one
Danforth, Atty. Gen.,
C.
Richard
John
drug
psycho-
other due to his
addiction and
Vodra,
Gen.,
Atty.
E.
City,
Asst.
Jefferson
logical breakdown.”
respondent.
for
At the time defendant entered
guilty
questioned extensively by
he was
HOLMAN, Judge.
He stated that he desired
in-
court.
to
8, 1971,
On November
(herein-
terrupt
movant
jury
the selection of the
for his
after
defendant)
referred
entered a
trial and
re-
to enter
to charge
degree
of second
charge
duced
of murder
the second de-
imprisonment
murder and was sentenced
gree.
He
further stated
within the
years.
September
for a
spent
term of 19
On
many
last week he had
hours discuss-
1972, he
attorneys;
filed motion to vacate his sen-
ing the case
that he
with
pursuant
tence
Rule 27.26. The trial
had had the
of his
advice
appointed
attorney
court thereafter
giv-
was satisfied
had
advice
plead-
to constitute the offense for which
him;
he
that he understood
en
being charged,
possible
right to a
and the
sentence
waiving
ing guilty
subjecting
he which the movant-defendant is
by jury;
that he understood
trial
guilty plea.
himself
reason of his
right
trial and to be confronted
had a
waiving that
and that he was
the witnesses
clearly
“The record of November
under the influence
right;
that he was not
shows the voluntariness of movant-defend-
*3
had no
any drugs
of
that time and had
guilty plea
said
conclu-
and
record
past six
symptoms during the
withdrawal
sively shows that
is enti-
movant-defendant
months;
entering
plea
of
that he was
tled
no relief under Rule
to
27.26 [V.A.M.
guilty of his
free will.
own
R.].”
attorney had
After the assistant circuit
The main contention of defendant here
in-
concerning
a statement
the facts
made
failing
is that the trial court erred in
to
ques-
in
volved
the case the defendant was
grant
evidentiary hearing
him an
regard
the court in
thereto. He
tioned
says
motion. He
that the fact that a trial
liquor
that he
a
store in the
stated
complied
court has
does
with Rule 25.04
man;
company
that
had a
of another
he
holding
not
it from later
foreclose
evi-
pistol
possession
in his
and that the other
dentiary hearing to determine the volun-
carrying
shotgun
man was
a
sawed-off
plea.
tariness
A
of
of the
determination
store;
it was their intent to
the
that
rob
question
ap-
requires
that
a
the
review of
robbery
the
was unsuccessful because the
plicable rule and recent state and federal
leg;
owner shot him in the
he then
that
subject.
cases
the
that have considered
pistol
shot the owner with his
and the
pronounced
upon
owner was
dead
arrival
“A
following:
Rule 25.04 contains the
hospital;
that he
may plead
guilty
fled and was taken
defendant
not
guilty.
or
by a
hospital
friend
a
in
may
accept
plea
to
East
Louis The
St.
court
refuse to
a
of
where we was
shortly
guilty,
arrested
accept
plea
thereafter.
and shall not
the
with-
plea
out first determining that the
is made
At the
it was
disclosed
de-
voluntarily
understanding
with
na-
of the
attorneys
pro-
fendant’s
had filed certain
charge.”
ture of the
ceedings
in the
Court of Missouri
and also in
Federal Rule 11 which is often men-
the United States
in
tioned in the cases contains a similar re-
an effort
rights
to secure certain
quirement
following
in the
language:
“The
explaining
delay
defendant.
In
the
in
may
accept
case,
plea
guilty,
the
court
refuse to
a
attorneys
of
of
one
the defendant’s
accept
plea
plea
and shall
such
a
of
stated that
the
not
or
always
had
State
been
ready
addressing
nolo contendere without first
try
the
delay
case but that the
personally
determining
the defendant
caused
their efforts in behalf of
plea
that the
voluntarily
the
is made
with un-
defendant.
derstanding
charge
of the
of the
nature
Respondent
in its motion to dismiss
consequences
plea.”
and the
of
In
the
Col-
called attention to our holding in
Colbert v.
219, 220,
bert v.
S.W.2d
State,
Shortly
the
(W.D.
after
the
U.
Colbert
S. District Court
of Mo.)
opinion,
of the United
ruled in Fontaine v.
and that court
States
construed our
su-
States,
213,
1461, pra,
being
United
411 U.S.
93 S.Ct.
as
in conflict with
At
Fontaine.
4H length time less any onment for case where required in a 27.26 duty defend- years. than 10 It was the complied Rule plea proceeding with as him to the to advise sufficient to show 25.04 was and hence and, punishment if consid- range of voluntarily that advisable, judgment their as give ered it understanding of the nature of the punishment jury might the extent instant charge. of the consideration Our de- in the of conviction. While fix event case has us to conclude that caused we “threatened” fendant used the word Colbert rule should be combined with interpretation of the think the reasonable pleading well established rule of and the allegation attorney stated enlarged as follows: A 27.26 rule stated punishment jury movant, would be entitled evi- order to to an attorney The assess. could not have threat- dentiary facts, hearing, plead must not con- years imprisonment ened 175 in the usual clusions, which, true, if him entitle sense of no because he had con- word to relief must show that factual such punishment jury might trol over the fix. refuted elicited are not facts Moreover, stated in court defendant guilty plea hearing. with the manner which he satisfied grounds Most de alleged was advised.
fendant
are foreclosed
rules- stated
The allegation that confinement in
in the
heretofore
cases we have
reviewed.
jail
city
for months constituted du
supporting
In that
are
category
*5
by
ress is
4, 6,
refuted
state
8, supra.
7
will
and
We
limit our dis
ments
it
that
that was shown
all of the
cussion to those which merit consideration.
delay
legal proceedings
resulted from
insti
allegation
On the
ineffective
assistance
attorneys.
tuted
defendant’s
Further
generally
of counsel it
be noted
that
should
more, this confinement would not have
plea hearing
at the
the defendant stated
plead
caused
defendant to
that he
since his
spent many
discussing
had
hours
trial
had
time
started
was
attorneys;
case with
that
had
entered.
reasonably
Defendant
advised
should
him and that he was
satisfied
have known
days,
that within a few
that
At that
it
advice.
was also
trial,
conclusion of the
he would
attorneys
either be
spent
shown that defendant’s
had
free,
acquitted
set
or
about
and
convicted and
seeking
months
certain
18
relief for
penitentiary.
transferred
him in
the Missouri
Court and in
U.
S.
Court. His
allegation
The
regarding drug ad
that
investigate
did not
all
obviously
diction was
refuted
defend
possible
defenses
not sufficient to war
proceedings
statements at the
rant relief
not allege
because
does
what
support
does not
claim that
he was
likely
defenses were available and
would
hearing.
entitled
ato
have been
if further investiga
discovered
McKnight
State,
tion had been made.
v.
In addition to the authorities heretofore
497
201 [4,5] (Mo.App.1973).
S.W.2d
gener-
cited our
supported
conclusions are
not
murder,
“with 175
legation
imprisonment.
fendant
sufficient to
We have
that his
years
punishment
charged
It was also
if he should stand trial” is
also
require
lawyer
concluded
with first
for which is life
De
a hearing. threatened him State,
possible
that he
degree
al
Journey, (8th Cir., 1973),
that the is entitled to no grounds. ground nine One did ant set forth Rule hence the trial court 27.26(e), and lawyer threatened him with evidentiary was that his err in failing not to conduct years if stand trial. he should We hearing. the record before us cannot tell from not, also contends Defendant if it truly this occurred or whether or findings fact and court failed to make did, the effect was defendant. If what on pursuant Rule 27.- occur, conclude, of law to conclusions it did how can we shall (i) provides that “The court any specific which findings basis of of fact in the findings record, make of fact and conclusions that it did not coerce defendant? presented, deference, law on all issues whether or I do not believe we can With asserts that is held.” He speculate that “threatened” was meant re should be judgment this reason the convey defendant to the idea that counsel do versed and the cause remanded. We stating punish- to mandatory agree. usually it is While jury ment a to According would assess. findings of fact dictionaries, for the court to make standard the verb “threaten” entering time of conclusions law at the promise threat, means as a to hold out motion, in in this ruling the order on the by way warning, attempt menace or ruling stance the basis of the trial court’s by promising punishment, to dissuade re- ac sufficiently appears in the record. The prisal or distress. have no factual ba- We sustaining the mo tion of the trial court sis on which to find defendant used the equivalent to tion to dismiss was something word to mean innocuous. with the and conclusions accordance argument The advanced that counsel in that quoted) set out (heretofore could not have meant “threatened” in the grounds are sufficient motion. Those usual sense of the word because counsel provide appellate a basis for review. has punishment no control over what Judgment affirmed. jury fix, may appeal judges, to us as fact,
because we be it know but *6 does not follow at all that also defendant DONNELLY, J., and C. MORGAN may literally knew this. He have taken HENLEY, JJ., concur. alleged lawyer what he said. The same applies plea pro- to the fact that the guilty SEILER, separate in J., dissents dissent- ceedings show defendant said he was satis- ing opinion filed. fied the in manner which he was ad- may
vised. have Defendant believed pleading guilty despite time of the ex- BARDGETT, in J., dissents and concurs alleged grounds istence of what he as in SEILER, separate opinion of dissenting J. motion, lawyer that his had done 27.26 FINCH, separate in dissent- dissents defendant was entitled to and that J., grounds complaint. Certainly ing opinion filed. had no for specific there is no refutation in the SEILER, Judge (dissenting). plea proceedings any al- grounds of the motion, the leged except in the as to 27.26 disposition The dissent. respectfully I un- drug say, addiction claim. We cannot adopted and now by trial court made us, under no cir- der the record before not, meet my opinion, by does in this court facts cumstances could defendant establish standards, which the federal constitutional al- any warranting relief on federal binding on us as well are leged. courts. addition, majority to me the invol- In it seems made an Defendant contended he movant, in or- stating: in “A 27.26 plea. a or coerced Such untary
413 analyzed the record sifted and opinion, has evidentiary hear- be entitled to der to findings which effect, has, made the conclusions, in plead facts, ing, must by trial court. been made should have which, true, him to relief entitle if so, stated, not believe I As even do allega- factual show that such and must record, if but by the supported findings are by facts elicited refuted tions are not my policy, are, is not sound it substantially re- plea hearing”, as- appellate courts judgment, for obtain chances to duces a defendant’s prop- logically are sume duties which We evidentiary hearing under rule 27.26. It by the trial court. erly performed to be a prepare provide will not him counsel to responsibility, side-stepping of encourages motion, State, 492 S.W.2d 27.26 Loflin v. Brown, (Mo. 436 724 see S.W.2d State v. though he asks (Mo.banc 1973), even 1969). provide amend; help for we will not transcript until aft- him with a case filed, proper er he has a motion State FINCH, Judge (dissenting).
Keeble,
(Mo.1968),
and we
S.W.2d
respectfully dissent because
cannot
I
I
provision
providing
have no
him with
agree that
the order
the trial court
copy
guilty plea
of his
proceedings under
amounted to
of fact and conclu-
general
rule 25.04
of this court
(see
order
respect
allega-
sions of law with
to all the
February
tran-
requiring
tions asserted in the motion to vacate un-
script
prepared
of such proceedings to be
principal opinion
der
As the
rule 27.26.
reporter
and filed with the circuit
state,
dis-
recognizes, the
in its motion to
clerk).
require
Yet now we are to
him
miss,
holding in Col-
called attention to our
prepare a lawyer-like pleading which will
(Mo. 1972).
bert v.
S.W.2d
dismiss,
show,
survive motion to
and to
It stated that an
of the record
examination
in his initial pleading,
that his
disclosed that what occurred exceeded
are not
refuted
facts elicited at
requirement
minimum
which this court had
guilty plea
this,
hearing. By requiring all
necessary
acceptance
held to be
on the
of a
we make it
impossible
close to
for the
guilty plea
the record
average inmate to file a 27.26 motion
no
showed that the movant was entitled to
require
which will
an evidentiary hearing,
relief under rule
to that
27.26. Pursuant
regardless of how meritorious his claim
motion,
summarily
the trial court
denied
may
reality.
be in
procedure
This
is not
motion
reliance
the Colbert case.
designed, in my opinion,
get-
to facilitate
That
is understandable because the court
ting 27.26 claims
out in the
and dis-
simply doing
what
we indicated
posing of them on the merits.
the con-
On
*7
proper.
Colbert was
trary,
it encourages the illusion that 27.26
claims
safely
can
finally
disposed
be
Subsequent
to our decision in Colbert
of on
grounds.
run,
technical
long
In the
(and after the trial court dismissed mov-
increase,
this
decrease,
will
the time
vacate),
motion to
required
and effort
by the courts and
of the United States decided Fontaine v.
dispose
counsel to
of 27.26 cases. Claims
States,
213,
1461,
United
U.S.
S.Ct.
of violation of federal
rights
constitutional
movant in Fontaine had no when CITY, Missouri, rel. STATE ex KANSAS guilty. of The decision municipal corporation, Relator, Henderson, 258, in Tollett v. 411 U.S. 1602, (1973) S.Ct. 36 L.Ed.2d indicates Judge, Honorable Robert A. MEYERS, a somewhat different test when de- Respondent. pleaded guilty fendant on advice of coun- No. 58602. However, sel. I would reach no conclu- sion at this time as to whether eviden- Missouri, Court of tiary hearing required in this case. En Banc. question properly That can be considered Sept. 9, 1974. only us decided under rule 27.26 findings the basis of a review of fact the trial conclusions law court
pursuant to rule 27.26(i).
There are two alternative courses availa- findings
ble to obtain such and conclusions. (following
One a course utilized on some
previous occasions) would be to enter an directing
order court the trial to make
findings fact and conclusions law on allegations
movant’s based on the record court, including
before the trial a finding
as to (including whether on the record
guilty plea hearing record) it can said be petition-
that under no could circumstances
er allegations based on his establish facts
warranting relief. The trial court then certify findings
would those and conclu- Meanwhile,
sions to this court. a decision
herein abeyance be held in pending
receipt of those and conclusions.
The other alternative would be to re-
verse and remand the trial court for it
to determine in the light Fontaine v. States,
United 411 U.S. 93 S.Ct.
tiary hearing on movant’s is re-
quired or whether on (including the record
the guilty hearing record) it can be
said that under no pe- circumstances could
titioner based on his establish
facts warranting In relief. either event
(whether after evidentiary or
based on from determination the files
and records), the trial court should make fact conclusions law as
required by rule 27.26 end that on (i)
appeal the kind of appellate review con-
templated by rule possible. 27.26 bewill