Stokes v. State, 48207
| Citation | 688 S.W.2d 19 |
| Decision Date | 29 January 1985 |
| Docket Number | No. 48207,48207 |
| Parties | Winford L. STOKES, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Robert J. Maurer, Asst. Public Defender, Clayton, for appellant.
Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Winford L. Stokes, movant, appeals from a judgment denying his Rule 27.26 motion after an evidentiary hearing. We affirm.
His motion sought to vacate judgment imposing a sentence of death, following a jury trial, on a charge of capital murder. Section 565.001 RSMo.1978. This judgment was affirmed on appeal in State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).
Movant contends the trial court erred: (1) in upholding his conviction and death sentence because, as a result of the ineffective assistance of his trial counsel, movant was forced to trial when the state withdrew its original plea offer; (2) in not finding a speedy trial violation when movant was arraigned one year and thirty-one days (396 days) after the filing of his indictment; and (3) in not finding a deprivation of his state and federal constitutional rights to effective assistance of counsel.
Our review is limited to whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). The trial court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Gentile v. State, 637 S.W.2d 30, 32 (Mo.App.1982).
Prior to his capital murder conviction in St. Louis County, movant pleaded guilty in the Circuit Court of the City of St. Louis on September 10, 1979, to second degree murder, two counts of first degree robbery, armed criminal action, two counts of escaping custody and stealing a motor vehicle. Movant was sentenced for the seven felonies to concurrent terms of imprisonment of fifty years. Movant's Rule 27.26 motion to vacate these convictions was denied and the judgment denying the Rule 27.26 motion was affirmed in Stokes v. State, 671 S.W.2d 822 (Mo.App.1984). We borrow freely from that opinion's recitation of facts without the use of quotation marks.
In September 1979, movant had seven felony charges, including capital murder, pending against him in the St. Louis Circuit Court, and another capital murder charge pending against him in St. Louis County. On the day set for the trial of the city charges the state offered to reduce the capital murder charge to second degree murder and recommend a sentence of fifty years with the sentence to run concurrent with the sentences for the other six felonies. The offer was conveyed to movant who wanted to know about the disposition of the pending capital murder charge in St. Louis County. The assistant city circuit attorney and defendant's attorney spoke with the first assistant prosecuting attorney in St. Louis County, who agreed to reduce the capital murder charge to second degree murder, and recommend fifty years to run concurrently with the sentences received in the city. This offer was conveyed to movant and he agreed to it. The city and county agreements encompassing all charges in the city and county were discussed with the city trial judge, who said he had no objection to the arrangement. Thereafter, defendant pleaded guilty to the seven felonies in the city and was sentenced in accordance with the plea agreement.
Approximately 10 days later, movant was transferred to St. Louis County. The county trial judge was informed of the plea arrangements and stated he had no objection to it. The state filed an amended information reducing the capital murder charge to second degree murder. According to defendant's attorney:
[a]t some point during the plea Winford decided he didn't want to deal. And the Judge said to him, "Well, are you going to plead guilty?" and he said, "No." and I said, "What's wrong?" and he said, "They're lying on me." And I said, "What do you mean they're lying on you?"
Apparently the newspapers had reported inaccurately the plea downtown and said that it was all consecutive time. And I said, "Well, you heard the Judge yourself downtown." But he dug his heels in and said, "No, I'm not taking any kind of a plea."
So at that point the state frankly got miffed and withdrew their offer. And the Judge said, well, there was nothing he could do about it. All he could do was schedule the case for trial.
That afternoon, movant's attorney spoke to movant and movant agreed to again accept the plea offer. The next day, movant's attorney communicated this to the office of the St. Louis County Prosecuting Attorney, but they refused to reinstate the offer. Following a jury trial, movant was convicted of capital murder.
Movant's first point alleges error in the court's failure to enforce the original plea agreement, i.e., reducing the capital murder charge to murder second degree and a concurrent fifty year sentence, since his trial counsel's actions deprived movant of effective assistance of counsel. The Rule 27.26 motion court specifically found that trial counsel had thoroughly explained the offer of the reduced charge with concurrent time to movant who encountered no problem when he entered his plea in the city. The court also found that movant's trial counsel had approached the county prosecutor's office the day after movant had refused to plead in the county to explain his client's actions in an effort to have the original offer of the reduced charge with concurrent time renewed. This finding is supported by substantial evidence as the facts previously recounted indicate.
Movant further argues in this point that the state should not have been permitted to withdraw its plea offer in light of the attendant circumstances, including movant's confusion over an inaccurate newspaper report, his partial performance of the total plea agreement by entering a guilty plea in the city, and the brevity of his consultation with his counsel prior to his court appearance in the county.
Movant argues that the plea bargain negotiated in the city and the plea bargain in the county are a single "package plea." Under contract principles, he theorizes his plea in the city constituted partial performance or detrimental reliance to estop the county from withdrawing its plea offer. The plea agreements, although arranged within the same time frame, are two separate bilateral contracts. The county was not bound to honor its offer where movant failed to keep his promise to enter his plea in the county.
The record clearly establishes that the movant, not the state, reneged on the plea agreement. But for the action of movant, he would have been sentenced in the county circuit court in accordance with the original plea agreement. By refusing to plead guilty, movant did not perform his part of the plea agreement. A prosecutor is justified in withdrawing from the plea agreement when the defendant does not comply with his part of the agreement. Where movant refused to plead guilty in open court and no guilty plea was entered, no constitutionally protected rights or liberty interests were triggered. Accord Mabry v. Johnson, 467 U.S. 504, ----, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437, 442 (1984). Movant also contends that the failure of the prosecution to reinstate the offer, making it a "one-day only special," was unreasonable. We know of no duty imposed upon a prosecutor to keep a plea bargain open for any length of time, accord United States v. Pleasant, 730 F.2d 657, 664 (11th Cir.1984), especially where, as here, a prosecution's offer is rejected at the time for the entry of the plea. Movant's first point is without merit.
Movant's second point challenges as clearly erroneous the Rule 27.26 trial court's conclusion that the delay of over one year between movant's indictment and arraignment on the capital murder charge in St. Louis County was an issue properly cognizable on appeal as trial error and not at the 27.26 hearing. Points not raised in the trial court nor on direct appeal from a conviction as trial error ordinarily cannot be raised in a Rule 27.26 proceeding. Rule 27.26(b)(3). Mindful of this rule, movant asserts the delay in his arraignment violated his right to speedy trial guaranteed him under the Constitution of the United States, thus qualifying the issue for consideration here. However, our Supreme Court has declined to review trial errors of alleged constitutional dimension under Rule 27.26 in certain instances where, by reason of procedural default, the issue was not preserved for review on direct appeal. See Schleicher v. State, 483 S.W.2d 393 (Mo. banc 1972); Fields v. State, 468 S.W.2d 31 (Mo.1971). These cases are in harmony with the principle that to preserve a constitutional issue for appellate review in Missouri, it must be raised at the earliest time consistent with good pleading and orderly procedure, and must be kept alive during the course of the proceedings. Neal v. State, 669 S.W.2d 254, 256 (Mo.App.1984). Otherwise, the failure to assert the constitutional right to a speedy trial at the onset reflects a defendant's apparent desire to delay his trial date. However, considering that Stokes...
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