549 S.W.2d 554 | Mo. Ct. App. | 1977
Appeal from denial, after evidentiary hearing, of motion under Rules 27.25 and 27.26, V.A.M.R., to withdraw pleas of guilty and to vacate and set aside judgments of conviction and sentences
On December 3, 1971, an indictment was returned which charged Alonzo J. Wright with the murder, first degree, of John D. Kemp (Count I), the murder, first degree, of William G. Simmons (Count II), and the robbery, first degree, of said John D. Kemp (Count III), at a service station at 75th and Prospect, Kansas City, Jackson County, Missouri, November 20, 1971.
On December 7, 1971, Alonzo J. Wright was arraigned and a plea of not guilty was entered. On December 8, 1971, Lewis E. Pierce, having been employed in defendant’s behalf, entered his appearance, and the not guilty plea was again entered on behalf of defendant.
On January 14, 1972, defendant, by his attorney, Mr. Pierce, moved for a mental examination under Missouri’s mental responsibility law, Chapter 552, RSMo 1969. On January 19, 1972, the motion was sustained and defendant was transported to Fulton State Hospital for mental examination. A report of opinions, findings, and conclusions by C. E. Merrifield, D. 0., dated March 7, 1972, was filed of record and copies were furnished to counsel.
On April 18, 1972, irrespective of the foregoing report finding defendant competent to proceed, defendant, by his attorney, Mr. Pierce, moved for a second mental examination of defendant to be conducted at Western Missouri Mental Health Center. Defendant, by his attorney, also moved to sever trial of the offenses charged in the indictment.
On April 25, 1972, defendant, with his attorney, Mr. Pierce, appeared in open court, withdrew his not guilty pleas previously entered on December 7 and 8, 1971, and entered pleas of guilty to all three charges in the indictment. The court, the Honorable Thomas J. Stubbs, after determining, among other things, that defendant had full opportunity to consult with counsel and that his pleas did not result from inducements or promises, accepted his guilty pleas and sentenced him as aforesaid.
On June 9,1975, Alonzo J. Wright initiated this proceeding by filing his motion to vacate. On October 1, 1975, and March 16, 1976, movant amended his motion and, as so amended, his motion was heard March 22, 1976.
Movant’s father, Alonzo J. Wright, Sr., claimed he was not permitted to see his son at the police station following the arrest. On November 26, 1971, he employed Mr. Pierce as counsel for his son. “Mr. Pierce took the case for the sum of $6,000.00,” and they spoke numerous times of a mental defense. At one time, he said “he wanted a thousand dollars to take my son to a private doctor, which I paid for a private psychiatrist which my son never did get.” He stated that Mr. Pierce never gave him any messages to give to his son about the case. Mr. Wright stated that on the date of the guilty pleas he told his son that he should plead guilty. He recited also that he had told Mr. Pierce of threatening calls which he thought came “f’om the family of the people that was killed.” He also reported the calls to the F.B.L He did not communicate any knowledge of threats to his son.
Lewis E. Pierce has practiced law for twenty-five years and has specialized in representation and defense of persons charged with crime. In representing Alonzo J. Wright, he met with him and discussed his case between “six to ten times.” He was unable to be specific as to dates because Mr. Wright, Sr., had been given his file at some time after the guilty pleas were entered. “I have a recollection * * * of discussing with him his confession, of which I had a copy * * * as well as all the statements involving him by other people. * * * it was a very damaging statement. * * * I filed a Motion to Suppress. * * * eventually we got done with the fact that he had signed this confession and that the statements in it were true; and that * * * was necessary for me to know * * * in order for me to determine what would be the best type of defense. * * * after talking it over with Alonzo I felt that it was a very damaging piece of evidence.” The State’s file, to which he had access, contained confessions by other people, particularly a “confession by Lawrence Daniel Baker
Appellant argues (I), emphasizing favorable testimony given by himself and his father to the effect that counsel failed to talk with his client sufficiently to develop a defense and that his actions coerced him to waive valuable trial rights, that he did not receive effective assistance of counsel.
He argues (II), again emphasizing his own and his father’s testimony that he pleaded guilty because of threats of violence to his family and counsel’s threat that he would get the death penalty if he went to trial, that his guilty pleas were thus involuntary.
The difficulty with both of appellant’s contentions is that they disregard credible evidence tending to prove the contrary, as found by the trial court.
In proceedings under Rules 27.25 and 27.26, V.A.M.R., to withdraw a guilty plea and to vacate the sentences which are imposed as a result, the burden is on the defendant to prove by a preponderance of the evidence that manifest injustice has occurred, State v. Jackson, 514 S.W.2d 638 (Mo.App.1974); and conflicts in the evidence are for the court to resolve, Spencer v. State, 534 S.W.2d 598 (Mo.App.1976).
The undisputed facts, particularly those found from the guilty plea proceedings, and the testimony of Mr. Pierce, were obviously accepted by the trial court as the credible version of the facts, and that version stands in contradiction of appellant’s case. It also demonstrates that Alonzo J. Wright received the effective assistance of counsel to which he was entitled, and that he failed in his burden to demonstrate that alleged acts or omissions of counsel went beyond errors of judgment or strategy and were of such character as to result in deprivation of the right to a fair trial. Cook v. State, 511 S.W.2d 877, 881 (Mo.App.1974); Crow v. State, 514 S.W.2d 13, 14 (Mo.App.1974); Johnson v. State, 516 S.W.2d 500, 501 (Mo.App.1974); Owens v. State, 543 S.W.2d 810, 811 (Mo.App.1976).
Similarly, the undisputed facts and the testimony of Mr. Pierce provide sufficient evidence upon which to deny appellant’s second contention. The father’s part in the determination to enter guilty pleas does not support a charge that Alonzo J. Wright was coerced to plead guilty. The father is shown to have weighed the alternatives, and his inducement as a parent does not constitute coercion warranting a conclusion that his son’s guilty pleas were involuntary. Schuler v. State, 476 S.W.2d 596 (Mo.1972). Nor does Mr. Pierce’s part in the determination that his client plead guilty rise to coercion. He advised his client of the difficulties in defending the case and the risk of a death penalty, all of which appears to have been understood and considered by the client. Mr. Pierce had a duty to provide such information to his client, Stewart v.
Judgment affirmed.
All concur.
. The sentences on the murder counts were ordered to run consecutively; the sentence on the robbery count was ordered to run concurrently with the other two sentences.
. Lawrence Baker was tried to a jury, convicted of these crimes, and sentenced to life imprisonment on each murder count, and to 99 years’ imprisonment on the robbery count. The conviction was affirmed. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).