Bandy v. State, WD

• Decision Date: 20 July 1982
• Docket Number: No. WD,WD
• Citation: Bandy v. State, 639 S.W.2d 136 (Mo. App. 1982)
• Parties: Charles BANDY, Appellant, v. STATE of Missouri, Respondent. 33100.
• Court: Missouri Court of Appeals

Page 136

639 S.W.2d 136

Charles BANDY, Appellant, v. STATE of Missouri, Respondent.

No. WD 33100.

Missouri Court of Appeals Western District.

July 20, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Aug. 31, 1982.

John E. Turner, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for appellant.

John Ashcroft, Atty. Gen., Melinda Corbin, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C. J., and WASSERSTROM and NUGENT, JJ.

WASSERSTROM, Judge.

Bandy moved under Rule 27.26 to set aside three convictions which had been entered pursuant to his pleas of guilty. The trial court denied the motion, and Bandy appeals. We affirm.

Bandy's sole point on appeal is that the trial court erred because his pleas of guilty were not knowingly and voluntarily made, he did not understand the nature of the charges against him, and there was no factual basis for the pleas. Although this point in terms attacks the validity of the pleas to all of the charges then pending against Bandy, the argument portion of Bandy's brief deals only with the plea to the charge of second degree murder. This opinion will therefore be similarly confined.

Bandy argues that at the plea hearing, he "affirmatively denied an element of the crime of Murder in the Second Degree. This was done when he gave testimony that the struggle with Cunningham which led to Cunningham's death was suddenly provoked." His argument continues that this denial of an element of second degree murder demonstrated that he did not plead guilty to that charge with an intelligent understanding of the elements of the crime, that the plea was therefore equivocal, and that the plea therefore should not have been accepted. In this connection he further argues that the plea cannot be justified under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) for the reason that no showing was made that Bandy understood the elements of the charge and nevertheless voluntarily chose to plead guilty rather than to take the risk of the jury disbelieving his innocence.

The facts underlying this matter are as follows. Bandy was incarcerated awaiting trial on forgery and other charges. He became involved in an altercation with another inmate Cunningham, as a result of which Cunningham died. Based upon that episode, Bandy was charged with capital murder. Bandy's attorney, Williams, entered into a plea bargain with the prosecuting attorney, under which the charge of capital murder would be reduced to murder in the second degree and the prosecutor would recommend a sentence of 20 years. Other elements of the plea bargain relating to the other pending charges need not be detailed.

A hearing was then held before Judge Moore of the Circuit Court for the presentation of Bandy's guilty pleas. The judge first made some preliminary statements and asked some preliminary questions of Bandy. Then Judge Moore made the following statement: "Take the stand, please. If counsel can elicit from the Defendant in his sworn testimony that these pleas of guilty are entered knowingly, understandingly, and voluntarily, and that there is a factual basis for them, they will be accepted and the plea bargain will be honored. You may inquire to that end." Mr. Williams then undertook an interrogation of Bandy, in the course of which the following occurred:

"Q. (by Mr. Williams) Now to the facts of the crime, Mr. Bandy, let's first go to the --this Capital Murder charge which has been reduced to Second Degree Murder. Can you tell us, is this the offense that occurred on the 19th of May, 1978 up in the jail?

A. Yes.

Q. Could you tell us how that came about?

A. Only that I went down to see Cunningham about the silent treatment I was getting.

Q. The silent treatment you were getting?

A. Yes. From the rest of the inmates. When I asked him why, and approached him, and asked him why, he said, 'You know why', and held the letter up to me. And I reached for it, and he stabbed me in the chest with an ink pen he held.

Q. And then what happened?

A. Then we got in a scuffle and I panicked; and I don't remember the rest.

* * *

* * *

Q. What is the next thing you remember?

A. Waking up in Solitary Confinement Cell."

A colloquy between the court and counsel discloses that neither attorney Williams nor the court was satisfied with the foregoing testimony. However Judge Moore then made the following comment: "It is not as full and complete as it may be, but I think it might be that Mr. Schaffer [the prosecuting attorney] would be able to supply what the State's evidence would be, and the two together would spell it out sufficiently."

In response to that invitation by the court, the prosecuting attorney made the following statement of what the state's evidence would be: "I would state for the record that were we to proceed to trial, the State's evidence would be that Charles Bandy just a few minutes before David Cunningham was attacked and killed, had taken some shoes from Cell 2 and worn those. He had requested the assistance of other inmates in helping him attack Charles--attack David Cunningham; that during the course of the attack, he had knocked David Cunningham down to the floor, and David Cunningham was unconscious, at which time Mr. Bandy used the bunks on either side of the cell for support, and jumped up and down repeatedly on David Cunningham's head and in his face. * * * The evidence will further be that David Cunningham died on the floor of his cell and died as a direct result of the attack on him by Charles Bandy...."

At the 27.26 hearing, attorney Williams was called to testify by the state. Williams stated that he had examined the state's evidence, including video statements that had been given to the prosecutor under oath and that he had also examined the written reports of the disciplinary committee and the officers who had investigated the incident at...