Beach v. State, 56586

• Decision Date: 11 December 1972
• Docket Number: No. 56586,No. 2,56586,2
• Citation: 488 S.W.2d 652
• Parties: Sidney Theodore BEACH, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 652

488 S.W.2d 652

Sidney Theodore BEACH, Appellant, v.STATE of Missouri, Respondent.

No. 56586.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1972.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 8, 1973.

M. J. Croghan, Jr., St. Louis, for appellant.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

This is an appeal from a judgment denying Sidney Theodore Beach's Criminal Rule 27.26, V.A.M.R., motion to vacate concurrent 10-year sentences for second degree murder and assault with intent to kill with malice, entered upon pleas of guilty.We have jurisdiction, the notice of appeal having been filed before January 1, 1972.Art. V, §§ 3,31, Constitution of Missouri, 1945, V.A.M.S.

Appellant's first point is that the court erred in denying his motion to vacate for the reason that the court's finding 'did not determine the period during which the attorney had authority to act for petitioner'; that the court should have found that the attorney had such authority for a period of approximately one month.

Shortly after the indictment was returned appellant's brother hired attorney Walter Brady to represent appellant.Walter Brady entered his appearance as attorney for appellant on April 1, 1968.Appellant testified that he discharged Walter Brady sometime in April, 1968.The record shows that on October 2, 1968appellant, acting pro se, filed a motion for a hearing on violation of constitutional rights in the Circuit Court of the City of St. Louis, claiming that he had been denied a speedy trial.On October 24, 1968Walter Brady appeared in court and procured an order that October 2 motion be passed.As a result the motion was never called up for hearing prior to the time appellant pleaded guilty to the two charges (in May and June, 1969).Although not spelled out with clarity it seems to be appellant's position under his first point that the judgments and sentences should be vacated because of the failure of the court to find that attorney Walter Brady's authority to act as his counsel terminated in April, 1968 and that his subsequent action in making the unauthorized court appearance on October 24 constituted a derogation of his constitutional rights to petition and to a speedy trial.

There is no merit in this point.The delay did not deprive the circuit court of jurisdiction or invalidate the conviction and there is no showing that the alleged frustration of his right to petition and to a speedy trial affected the fairness of his trials in May and June, 1969.State v. Caffey, Mo.Sup., 438 S.W.2d 167.Furthermore, 'A plea of guilty voluntarily made with understanding of the nature of the charge is conclusivie as to guilt and waives all nonjurisdictional, procedural and constitutional infirmities, if any, in any prior stage of the proceeding.(Citing seven decisions.)'Geren v. State, Mo.Sup., 473 S.W.2d 704, 707.'The entry of the plea of guilty ended all questions based upon either statutory or constitutional guaranties of a speedy trial.State v. Barrett, Mo.Sup., 406 S.W.2d 602, 604(3--5);Pate v. United States, 8th Cir., 297 F.2d 166, cert. den., 370 U.S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507.'Rew v. State, Mo.Sup., 472 S.W.2d 611, 613(3).

Appellant's second point is that he did not plead guilty voluntarily; that the sequence of events from the date of his arrest to the time he entered his pleas of guilty 'served to degrade petitioner's mental attitude to the extent that it was impossible for him to enter intelligent and fully voluntary pleas of guilty.'He points to the search of his room and effects and the seizure of his automobile at the time of his arrest; the disclosures of guilt to psychiatrists at the state hospital where he was taken for psychiatric examination, made without an attorney being present and at the importuning of the hospital employees; the continuance of his cases and the passing of his pro se motion without his knowledge, in violation of his rights; the appointment and withdrawal of a succession of lawyers; the representation of attorney Myron Gollub that he would receive probation, and the failure of the sentencing court to mention that by pleading guilty appellant would lose the constitutional right to confront his accusers and the privilege against self-incrimination.

Appellant had the benefit of the advice of six lawyers.He conceded that all of the lawyers explained to him his right to trial by jury and the possible outcome of a trial by jury.That he understood his right to trial by jury is further indicated by the fact that this 47-year-old man, with an education through the third year of high school, prepared a pro se motion claiming his right to 'a speedy and just trial by jury.'

That the court did not commit error in not finding that appellant pleaded guilty on the basis of representations by his attorney that he would receive probation is clear from the record, made at the time he entered his plea in May, 1969, as follows:

'THE COURT: Do you understand that if I do refer it to the Probation Office that you may or may not be placed on probation, irrespective of what they say?Do you understand that?

'THE DEFENDANT: Yes, sir.

'THE COURT: Obviously, if they say you should not be, you have no chance.Do you understand that?

'THE DEFENDANT: Yes, I understand.

'THE COURT: If they say you should be placed on probation, then that would give me some guide-lines.Do you understand that?

'THE DEFENDANT: Yes, sir.

'THE COURT: But I would not have to follow it?

'THE DEFENDANT: I understand.

'THE COURT: Did anyone promise you that you would be placed on probation if I accepted your plea of guilty?

'THE DEFENDANT: No, sir.

'THE COURT: * * * (T)heCourt will accept your plea of guilty and I will refer it to the Probation Office, but I don't want you under any circumstances to get your hopes all built up that you are going to be placed on probation because there is one thing that this Court is opposed, to, and I told your lawyer that, and that is crimes of violence.There are some that perhaps I can understand, but to take a gun and shoot at someone, that is a pretty drastic way of scaring someone, and you know that now.

'THE DEFENDANT: Yes, sir.'

The record shows that the charges were clearly and fully explained to appellant at the time he entered his pleas.

The circuit court had before it not only the factors pointed out by appellant but also other evidence bearing upon the question whether appellant pleaded guilty voluntarily with understanding of the nature of the charge.The circuit court determined, and on this review we agree, that appellant has failed to sustain his burden of showing that manifest injustice resulted from the court's acceptance of appellant's pleas of guilty.On the whole record the finding that appellant'knowingly and voluntarily pled guilty' is not clearly erroneous.

For his third point appellant claims error in not finding that his constitutional rights were violated in the following five respects but the complaints, even if true, would not justify vacation of the judgments and sentences: (1) Receipt and transmission to the prosecuting authorities of...