Merle Ray WINFORD, Respondent, v. STATE of Missouri, Appellant.
No. 56319.
Supreme Court of Missouri, En Banc.
Sept. 11, 1972.
Rehearing Denied Oct. 9, 1972.
43
In the 1961 suit defendant pleaded payment, statute of limitations, and invalidity and non-coverage of the ordinances. The evidence from the city was that the ordinances were in effect, an audit was made, deficiencies found, and the city asked for judgment. The city put on no evidence as to the method of operation of defendant. Defendant had one witness, the operating manager of the district, who testified as to the district boundaries and some of the details of defendant‘s method of operation. On this record, the court entered judgment for defendant without saying why. From this general judgment it is impossible to say that any fact issue was resolved against the city which necessarily requires a judgment against the city in the present case. The court could have decided the ordinance did not apply or that the city failed to carry its burden of proof to show a sufficient nexus between the outside sales of the Kansas City district office. There is nothing necessarily inconsistent between the 1961 judgment and the facts found in the present case.
proved. An identity exists of the parties, general subject matter and transactions. From a consideration of the transcript of the testimony of the witnesses in Cause No. 640,501, filed in 1961, (Defendant‘s Exhibit 21), and of the pleadings, it is not discernible whether the evidence was responsive to the pleadings, and therefore, we cannot say which facts were conclusively adjudicated . . . .”
The judgment of the trial court is reversed with directions to the trial court to enter judgment for plaintiff in the amount of $10,051.08 as of the date of the original judgment in this cause.
Judgment reversed with directions.
All of the Judges concur.
John C. Danforth, Atty. Gen., Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, for appellant.
HOLMAN, Judge.
Appeal by the State from order sustaining motions of Merle Ray Winford under
This appeal was originally heard in Division One where an opinion was adopted, but the case was subsequently transferred to Court en Banc because of the dissent of one of the judges. After the case was reargued the Division opinion failed of adoption en Banc and the cause was assigned to the undersigned. Portions of the aforementioned opinion are here adopted without the use of quotation marks.
On September 25, 1964, Merle Ray Winford was charged by information with murder, first degree. On September 30, 1964, he entered a plea of not guilty. On April 13, 1965, in open court, the State “reduced” the charge to murder, second degree, and recommended a sentence to life imprison-
Beginning September 23, 1969, Merle Ray Winford filed a series of five motions to vacate judgment and sentence alleging variously as grounds for relief: that his plea was gained by false and misleading promises; that he was denied effective assistance of counsel; that he was forced to incriminate himself; that there was no conduct admitted by defendant which would have constituted murder in any degree; that the record before the sentencing judge is silent as to any incriminating conduct of defendant; that the judge never informed him of his rights; that the court did not determine that the plea was voluntarily entered and, by such failure, defendant was denied due process and his rights against self-incrimination, jury trial, and to confront witnesses.
On April 17, 1970, Merle Ray Winford, by and through his attorney, Joseph M. Kortenhof, filed “Supplemental Motion to Set Aside Judgment of Conviction and Sentence and Withdraw Plea of Guilty (
- The nature of the charge was not adequately explained to defendant by either the court-appointed attorney or by the court prior to the reception of defendant‘s guilty plea.
- Defendant, at the time of his guilty plea, did not know its consequences and legal significance.
- Ineffective assistance of counsel.
- Insufficient evidence to sustain a first or second degree murder charge and failure of counsel to so advise defendant.
- Counsel appointed so late that real or intelligent investigation and preparation were precluded.
- Defendant misled by counsel to believe an agreement had been reached for a ten-year sentence upon a guilty plea.
The evidentiary hearing was accorded April 17, 1970; movant‘s evidence consisted of his own testimony and the transcript of proceedings on his guilty plea of April 13, 1965.
* * *
Merle Ray Winford was discharged from the Army in October 1963. Prior to September 19, 1964, the date of the alleged offense, he had last been employed in July 1964. He had no previous conviction or difficulty with authorities. He was arrested September 20, 1964, on a check charge, and was in custody at all times thereafter. Approximately forty-five minutes after arrest, “I was told I had killed a person and they requested that I sign some papers. I told them I did not kill anyone. I was beat up and asked to sign the papers again—I still refused to sign the papers; I was beaten again—and I signed the papers.” He signed a paper styled a confession in which he admitted shooting a young woman to death. He signed the paper because he “couldn‘t take the beating any more. * * * I had not shot nobody.” He first talked to an attorney, “a member of the Public Defender,” three or four weeks after he was charged. He saw Mr. John Chancellor “four or possibly five times” for a total of “fifty minutes.” He said “there was very little he could do, due to the fact that I had signed a confession—that I had better plead guilty or I might end up in the gas chamber.” He told Mr. Chancellor the confession was false and that he gave it only to avoid further beating. They never discussed suppressing the confession. “Mr. Chancellor said—if I could get you a fixed amount of years, would you plead guilty, and I believe he said ten years—and I agreed to plead guilty to ten years. * * * I was under the impression * * * the confession was binding and it could put me in the gas cham-
The transcript of proceedings of April 13, 1965, showed:
“MR. KITCHIN: This is Cause 1378-M. The defendant is Merle Ray Winford, charged with murder first degree. The State will reduce the charge to murder second degree and recommend life in the State Penitentiary, Department of Correction.
“MR. CHANCELLOR: At this time the defendant will withdraw his plea of not guilty and enter a plea of guilty to the charge as amended, that is, the charge of murder second degree.
“THE COURT: What are the facts in this case?
“MR. KITCHIN: Your Honor, on Saturday, September 19, 1964, about 1:30 p.m., this defendant drove his girl he was going with, by the name of Bertha Lee White [Brenda Lee Wyatt], to the Lagoon Drive in Forest Park, where they discussed their relationship and she told him that she was going to leave him, break up with him, and so forth. So she started to get out of the car and he got a .22 caliber revolver from underneath the seat of the automobile and as she got out of the car he fired two shots into her head. He then took the body and placed it in the trunk of the automobile and drove to somewhere in Arkansas first and then to Kennett, Missouri. The sheriff of that county in Kennett, Missouri, found the body of the girl in the trunk of the automobile.
“MR. CHANCELLOR: For the benefit of the record may I state that the reduction is most proper in that this is not correctly murder in the first degree. He was not in the cool state of the blood. It was an offense brought about in a moment of passion.
“THE COURT: Is this the case where the defendant returned to the City? MR. KITCHIN: That is correct. THE COURT: And told the authorities where the remains of the girl could be found? MR. KITCHIN: He was in a daze and drove one hundred and eighty or two hundred miles.
“THE COURT: How old a man are you? THE DEFENDANT: I am twenty-eight years old, Your Honor.
“THE COURT: How much education have you had? THE DEFENDANT: I have a high school education.
“THE COURT: Where were you raised? THE DEFENDANT: I was born here in St. Louis, Sir.
“THE COURT: Have you been married? THE DEFENDANT. Yes. THE COURT: Divorced from your wife, is that it? THE DEFENDANT: Yes. MR. CHANCELLOR: His wife is very interested in what is happening.
“THE COURT: All right. Merle Ray Winford, in Cause No. 1378-M, wherein you are charged with the offense of murder in the second degree, the court will accept your plea of guilty as charged. And I hereby sentence you to life imprisonment in the Department of Correction.”
Evidence pertinent to the State‘s response consisted of testimony of witnesses Chancellor, Kitchin, and Friedman.
John D. Chancellor was an attorney employed by the Public Defender Bureau of the City of St. Louis. He opened a file on behalf of Merle Ray Winford October 1, 1964. He could not recall the number of times he talked to Mr. Winford but “they were numerous.” He was never presented with any alibi witnesses and he never promised defendant any term of years. He discussed the difference between murder in the first and second degree and the difference in punishment for those offenses. He discussed plea recommendations with the circuit attorney and obtained an agreement to recommend life imprisonment on a guilty plea. He explained the recommendation to the defendant. “I explained to him that if he went to trial on murder, first degree, that if he was convicted of that offense, the choice would be up to the jury—it would be either life imprisonment or death. I explained to him if the State tried the case they would be seeking the death penalty. I explained to him, on the contrary, that the State was willing to amend the charge to murder, second degree, if he elected to plead guilty, that the range of punishment—and this was the only time ten years was mentioned—the range of punishment was ten years to life. I told him the recommendation was life. * * * he never told me he was beaten.” Mr. Chancellor was aware of a confession signed by defendant. He made arrangements for defendant to have a mental examination and conferred with the circuit attorney‘s office regarding the confession. He made no investigation other than to talk to defendant; he did not see where he could investigate elsewhere based on what he learned from defendant.
Charles Kitchin was the assistant circuit attorney present at the plea proceedings. He recommended a life sentence when the guilty plea was entered, although he did not “negotiate the file” with Mr. Chancellor. He had never talked with Mr. Winford, and he could recall no “bizarre or unusual behavior as he stood before His Honor“; and he recalled no shock exhibited by defendant following the sentencing.
Arthur Friedman, also an assistant circuit attorney, took the written statement from defendant. On the Sunday afternoon of defendant‘s arrest, he met defendant, in company of two homicide detectives, at Forest Park. Defendant did not appear to be battered, bruised or beaten in any manner. There were no signs of blood and defendant made no complaint of beatings or third-degree tactics. Defendant was not struck in any manner during the time the statement was taken, typed, and signed. He made no recommendation in the case and he understood “that if the case was going to trial the State was going to seek the death penalty * * *.”
The court made Findings of Fact and Conclusions of Law:
- “* * * that the appointed counsel for petitioner fully explained to him the nature of the charge, the punishment prescribed by law, and the legal consequences of his having given a written confession as to his having committed the offense.”
- “* * * the petitioner, although at the time of the sentencing was not questioned about the consequences of such a plea, knew full well the nature of the charge, the punishment prescribed by law, and that the offense of murder in the first degree was
- “* * * that not only was effective assistance rendered to petitioner, but excellent service was given to him in persuading the State to reduce the charge from murder, first degree, to murder second degree.”
- “* * * the information or evidence given in the hearing with reference to physical punishment inflicted by the Police Department may have warranted such an attack upon the confession, but the Court finds beyond a reasonable doubt that no such information was furnished to petitioner‘s appointed counsel as to any ‘third degree’ or brutal punishment by members of the Police Department.”
- The contention “that the duly appointed counsel for petitioner was prevented from making an intelligent investigation and preparation for trial, is without merit.”
- “The only evidence to support Point 6, raised in petitioner‘s motion, is his testimony at the evidentiary hearing that he was misled in entering a plea of guilty to the charge of murder, second degree, on the assumption that he would receive a penalty of ten years. There is contradictory evidence from his appointed counsel to the effect that he advised petitioner that he would make an effort to have the murder, first degree, charge reduced to murder, second degree, and that the punishment for murder, second, was ten years minimum to life imprisonment in the State Penitentiary. Counsel for petitioner was successful in persuading the prosecuting officials to reduce the charge, but was unsuccessful in obtaining a recommendation of ten years. Therefore, this point is ruled against the petitioner because the Court is convinced that there is no doubt that the court-appointed attorney, John Chancellor, was telling the truth when he testified at the evidentiary hearing.”
With respect to whether the court adequately explained to him the nature of the charge pending against him and the legal consequences of entering such plea, the court found:
“* * * that the court failed to fully advise the defendant of all his constitutional rights, including an explanation of the charge that was placed against him, his right to a trial by jury, his right to have witnesses confront him, and all of the constitutional rights guaranteed to every citizen under the United States Constitution and the Constitution of Missouri relating to the entry of a plea of guilty to a criminal charge. Under Supreme Court Rule 25.04 the following is provided: ‘* * * The Court * * * shall not accept the plea without first determining that the plea is made voluntarily, with understanding of the nature of the charge. [If a defendant refuses to plead or pleads equivocally * * * the Court shall enter a plea of not guilty].’
“See transcript of proceedings on plea of guilty dated April 13, 1965.
“See State v. Blaylock, Mo.Sup., 394 S.W.2d 364. This the Court failed to do and, for this reason and this reason alone * * *” the plea of guilty heretofore entered April 13, 1965, is “permitted to be withdrawn; the judgment of conviction and sentence imposed thereafter is hereby set aside and for naught held.”
It is the contention of the State that the trial court erred in permitting the plea of guilty to be withdrawn in view of its factual findings indicating that the plea was voluntarily entered. It is said that the court erred in its conclusion of law that the defendant should be permitted to withdraw his plea because the court failed to fully comply with Rule 25.04 “for this reason and this reason alone.” (Emphasis ours.)
Defendant‘s (movant‘s) contention here is best shown by the following quotation from his brief: “The narrow issue presented to the court here is whether this court should reverse a trial court determination that
While
It is, however, settled beyond question in this State that “a defendant may not by reason of
We observe that the findings of the trial court did not include the specific statement that defendant entered his plea voluntarily. It is our view, however, that such is the only reasonable conclusion that could be reached from the findings that were made. It is also apparent from the foregoing quotation from movant‘s brief that he agrees with that conclusion.
As we have stated, the trial court found, in effect, that the plea of guilty was entered voluntarily with understanding of the charge and our review of the evidence has caused us to agree with that finding. In that situation we hold that the fact that the transcript did not show a full compliance with the requirements of
The judgment is reversed.
FINCH, C. J., and DONNELLY, and HENLEY, JJ., concur.
BARDGETT, J., dissents in separate dissenting opinion filed.
SEILER, J., dissents in separate dissenting opinion filed, and concurs in separate dissenting opinion of BARDGETT, J.
MORGAN, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.
BARDGETT, Judge (dissenting).
The majority opinion adopts the opinion prepared by Judge Higgins, Commissioner in Division One, through the court‘s findings of fact and conclusions of law, and to its statement of the state‘s (appellant‘s) contention. The majority opinion then observes that the findings of the trial court did not include a specific “statement” that defendant entered his plea voluntarily, and nevertheless undertakes to reverse the trial court‘s findings to the contrary and the grant of relief to movant on a “view” that such is the only reasonable conclusion that could be reached from the findings that were made.
I do not believe this to be an authorized determination of this case within the scope of review of this proceeding as limited by
In application of that premise to this case, I adopt the remainder of Judge Higgins‘s opinion as part of my dissent.
“Appellant contends the court erred in granting movant relief on the court‘s failure to comply with
Criminal Rule 25.04 , ‘since, in fact, the trial court had made findings of facts at the 27.26 hearing that the record disclosed that petitioner when he entered his plea of guilty was fully apprised of the nature of the crime for which he was accused and the consequences of pleading guilty thereto.’“In meeting appellant‘s contention, respondent reminds that
Criminal Rule 27.26 (j) , V.A.M.R., defines the scope of an appeal by either the prisoner or the state, and under the rule, ‘Appellate review shall be limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.’ See State v. Edmondson, Mo., 438 S.W.2d 237, 241-242 [1,2].“Appellant cites a number of cases affirming a denial of withdrawal of guilty pleas, e. g., State v. Mountjoy, Mo., 420 S.W.2d 316, State v. Sayre, Mo., 420 S.W.2d 303, Drew v. State, Mo., 436 S.W.2d 727, Mooney v. State, Mo., 433 S.W.2d 542, Bellew v. Swenson, Mo., 459 S.W.2d 351, with particular emphasis on holdings to the effect that failure of the trial court to comply with
Rule 25.04 is immaterial if the evidence at the 27.26 hearing establishes that the plea was made voluntarily with understanding of the nature of the charge, e. g., Watson v. State, Mo., 446 S.W.2d 763. Appellant cites also a number of cases governing voluntariness of a guilty plea, e. g., Kercheval v. United States, 274 U.S. 220, [47 S.Ct. 582, 71 L.Ed. 1009] Ford v. United States, 8 Cir., 418 F.2d 855, North Carolina v. Alford, 400 U.S. 25, [91 S.Ct. 160, 27 L.Ed.2d 162] Brady v. United States, 397 U.S. 742, [90 S.Ct. 1463, 25 L.Ed.2d 747] Parker v. United States, 397 U.S. 790, [90 S.Ct. 1458, 25 L.Ed.2d 785] Fleck v. State, Mo., 443 S.W.2d 100.“The purpose of such citations is to support an argument that the court in granting relief to movant ‘engaged in a true non sequitur. The court‘s finding of fact * * * establishes beyond any doubt that the trial
court was convinced that when the plea of guilty was entered by petitioner it was made voluntarily and with a full understanding of the nature and consequences of the charge of murder in the second degree.’
“The difficulty with appellant‘s argument is that the court‘s six numbered findings do not constitute necessarily a finding of a voluntary plea of guilty. The court might very well have made such a finding on the evidence in this case, and the burden might then be on the prisoner to demonstrate the finding to be ‘clearly erroneous‘. The situation, however, is different than the appellant would have it because the court did not make the ultimate finding of a voluntary plea of guilty which, if supported, could override a failure to comply with
Rule 25.04 , Watson v. State, supra. Instead, the court simply has found against movant on six of his grounds for relief, and has found for him and granted relief on the ground the court failed to explain the charge, his rights, including rights to trial by jury and to confront witnesses, and that such was a failure also to determine that the plea was made voluntarily. Appellant concedes the insufficiency of the plea record to show compliance withRule 25.04 .“Consequently, Judge McFarland‘s finding of his own failure to comply with
Rule 25.04 is supported by the evidence; it is not self-contradicting; it is in correction of the court‘s own error; and, accordingly, it may not be said to be clearly erroneous. Support in the case law may be found in the trial court‘s own authority, State v. Blaylock, Mo., 394 S.W.2d 364, and State v. Roach, Mo., 447 S.W.2d 553. See also Bellew v. Swenson, supra, 459 S.W.2d l. c. 355. In contrast, under similar circumstances and assertions, compare the painstaking compliance withRule 25.04 in Lansdown v. State, Mo., 472 S.W.2d 342.”
Additionally it is significant that the trial judge did not make a finding that defendant entered his plea voluntarily. The absence of such a finding is consistent with the judgment of the trial court setting aside the plea of guilty. This is particularly so in this case because the same trial judge who took the guilty plea set it aside.
In these circumstances the trial court‘s judgment permitting the guilty plea to be withdrawn is compatible with the failure to find the plea was voluntarily entered and was supported by evidence and consequently is not clearly erroneous.
The majority opinion holds that “the trial court found, in effect, that the plea of guilty was entered voluntarily with understanding of the charge and our review of the evidence has caused us to agree with that finding.” (Emphasis supplied.) Thus it seems acknowledged that this court‘s holding that the plea was entered voluntarily is an inferred finding on this court‘s part. This inferential finding is inconsistent with the trial court‘s judgment.
Adherence to the “clearly erroneous” rule for review, while permitting in some instances the indulgence on appeal in inferential findings to affirm a trial court‘s judgment, may not be resorted to as the basis for reversing a judgment of the trial court.
In my opinion the judgment of the trial court was not clearly erroneous and should be affirmed. For the foregoing reasons, I dissent from the majority opinion filed herein.
SEILER, Judge (dissenting).
I respectfully dissent. In my opinion the majority is reading too much significance into the statement of the trial court that “for this reason alone” the plea of guilty was permitted to be withdrawn. The majority takes this as meaning, and as being the only possible meaning, that the trial court granted relief because it believed that inasmuch as rule 25.04 had not been followed it literally had to set aside the plea, regardless of the other facts.
In so doing the majority opinion ignores the effect of the acknowledgment by the trial court that it failed to advise the defendant fully of his constitutional rights, which may have been the only way the de-
Additionally it should be pointed out that in taking the view that the trial court thought it had to grant relief because the court had not complied with 25.04 at the time of sentencing, the majority overlooks the citing by the trial court of State v. Blaylock (Mo. Sup.), 394 S.W.2d 364, which shows the trial court correctly understood rule 25.04 and the effect of the failure of the court to advise the defendant fully of of his constitutional rights.
V. S. DICARLO CONSTRUCTION COMPANY, INCORPORATED, Appellant, v. STATE of Missouri, Respondent. No. 56142. Supreme Court of Missouri, Division No. 1. July 17, 1972. Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 9, 1972.