Barylski v. State, 56559
| Decision Date | 13 December 1971 |
| Docket Number | No. 56559,No. 1,56559,1 |
| Citation | 473 S.W.2d 399 |
| Parties | Michael Thomas BARYLSKI, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent |
| Court | Missouri Supreme Court |
Gerald A. Rimmel, Leonard Komen, Susman Willer Rimmel & Elbert, .st. Louis, for appellant.
John C. Danforth, Atty. Gen., John B. Mitchell, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
Appeal from denial of relief, after hearing, in proceeding under Supreme Court Rule 27.26, V.A.M.R., to set aside judgment of conviction and five-year sentence for rape.
Michael Thomas Barylski, along with three other persons, was charged with rape in the City of St. Louis. One defendant was tried and received a life sentence, affirmed by this court in State v. Drope, Mo.Sup., 462 S.W.2d 677. Subsequent to the Drope trial, movant here entered his plea of guilty and was sentenced to five years' imprisonment. His 27.26 motion asserted numerous grounds for relief, but the only ones now urged are that the plea was involuntary because it was induced by what movant believed was a promise by his counsel of probation or parole, and that the judgment should be set aside because of inadequate representation of counsel.
Appellant was 19 years old at the time of his plea. He had a ninth grade education and had no prior criminal record. Through appellant's bondsman, Mr. Paul Dobberstein was employed to represent appellant. At the 27.26 hearing, appellant testified that Dobberstein advised him that he should plead guilty or he 'could wind up with what Mr. Drope wound up (with).' He said that Dobberstein told him that on a plea of guilty he could possibly get a life sentence or could get two years. In response to questions, the movant stated: 'I thought I had a chance to make probation possibly.'
'Q Are you stating to the Court now that somebody promised you something if you would plead guilty?
A Yes, sir.
Q Who was it who promised you something?
A Mr. Dobberstein; Paul Dobberstein.
Q What did he promise?
A He told me that I could be out of the penitentiary within a day or within a year. It was my understanding I'd be out in a year at the most.
Q. He promised you this, or was it in the form of advising you what could happen?
A I believe it was a promise.'
Dobberstein testified as follows:
'Q Did you advise him that, your opinion, it would be his best interest then to enter a plea of guilty?
'A Yes, I did.
'Q Did you tell him in, that in your opinion he could not be acquitted if the case were tried?
'Q Did Mr. Barylski believe that he was going to get out on probation within a day or so after entering his plea of guilty?
'A I don't believe he did.
'Q Did you promise him that he would?
'A No, I didn't.
'Q Did you at any time tell Mr. Barylski he would be out of jail within a year if he entered a plea of guilty?
'A I told him there was a good possibility that he would make parole within a year if he did make probation originally.
'Q Did you explain to him the difference between probation and parole?
'A Yes.
'Q What did you tell--
'A I told him that the probation would be from Judge McGuire and that if he did not make probation that he would be eligible for parole after going to the penitentiary, and the Parole Board would decide this.
'Q Did you lead him to believe that Judge McGuire would seriously consider probation for him?
'Q Was there some basis for this belief on your part?
'A Yes.
'Q When you were discussing the possible alternatives in the case, did you advise him that you could not make any promises or you could not speak for anybody other than yourself?
'A Yes, I did.
'Q In other words, do you feel that Mr. Barylski felt that you were speaking for Judge McGuire or for the Circuit Attorney's Office?
'A Not Judge McGuire, but perhaps for the Circuit Attorney's Office.
'Q Did he ever indicate anything to you in this way?
'A No, but I told him what the Circuit Attorney's, what their recommendation would be to Judge McGuire, and I--
'Q I'm sorry.
'A I did tell him that unless there was something very unusual that the Court would probably go along with this recommendation.'
On basically the foregoing record, together with the transcript of the proceedings at the time of the plea (not claimed to have been lacking in compliance with Supreme Court Rule 25.04, V.A.M.R.), the trial court made the following finding:
'(T)he Movant voluntarily, willingly, and understandingly, on the advice of competent counsel and without coercion or misrepresentation, entered a plea of guilty to the charge of rape (forcible) on September 29, 1969;
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