Bellew v. Swenson, 55242

• Decision Date: 09 November 1970
• Docket Number: No. 55242,No. 1,55242,1
• Citation: 459 S.W.2d 351
• Parties: Allen E. BELLEW, Appellant, v. Harold R. SWENSON, Warden, Respondent
• Court: Missouri Supreme Court

Page 351

459 S.W.2d 351

Allen E. BELLEW, Appellant, v. Harold R. SWENSON, Warden, Respondent.

No. 55242.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1970.

Landon H. Rowland, Charles E. Patterson, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Presiding Judge.

Petitioner appeals from the overruling by the trial court of his motion to set aside the judgment of conviction of armed robbery and for permission to withdraw his plea of guilty on the ground that the alleged plea was not freely and voluntarily made and that the trial court failed to comply with Rule 25.04, V.A.M.R. There was an evidentiary hearing conducted by Judge Elliott in the Circuit Court of Clay County after Judge Rooney, who had taken the plea, disqualified himself. By agreement, Judge Elliott also had the transcript of the evidence in an earlier hearing in a habeas corpus proceeding held in the United States District Court for the Western District, at Kansas City. The federal hearing was terminated before conclusion, to permit full state court exhaustion under a new motion, which has now reached this court on appeal.

On November 28, 1961, petitioner pleaded guilty to a charge of armed robbery growing out of the robbery of the Farley State Bank and was sentenced to 30 years confinement in the state penitentiary.

In the hearing before Judge Oliver in federal court, the witnesses were petitioner, Judge Rooney, and petitioner's attorney at the time of the guilty plea, Roy W. Brown. In the hearing before Judge Elliott the witnesses were Charles Sales, Jr., a Clay County deputy sheriff, Douglas Seneker, a former Clay County deputy sheriff, Robert P. C. Wilson, III, prosecuting attorney at the time of the guilty plea, and, again, petitioner.

Judge Elliott overruled the motion, after making findings of fact and conclusions of law, among which were these:

'1. That Petitioner was charged with the commission of robbery in the first degree and that he was aware of the nature of the offense with which he was charged.

'2. That Petitioner was represented by counsel of his own choosing, Roy W. Brown, from the day after his arrest up to and including the day upon which he entered his plea of guilty.

'4. That on said date (November 28, 1961), Petitioner, by and through his attorney, withdrew a plea of not guilty, waived the reading of the information and entered a plea of guilty to the crime of robbery in the first degree.

'5. That Petitioner, when inquiry was made, responded that he was guilty of the crime with which he was charged.

'6. That Petitioner, prior to the time that he entered a plea of guilty, was aware of the maximum and minimum sentence which could be imposed for the commission of robbery in the first degree.

'7. That there has not been sufficient credible evidence adduced to sustain the credible of proving that Petitioner's plea of guilty was entered as a result of any inducemtns, threats, misrepresentations, or coercion exerted upon Petitioner either by the court, the attorneys representing the State, his own attorney, or any of the various law enforcement personnel who had occasion to come into contact with the Petitioner.

'The plea of guilty * * * was freely and voluntarily entered as required by the Supreme Court Rule 25.04. Further, Petitioner did not sustain his burden of proving that the plea was not freely or voluntarily entered. Even if petitioner had sustained his burden of showing that Supreme Court Rule 25.04 had not been complied with, it is the conclusion of this court that there was no manifest injustice resulting from the plea of guilty or the events surrounding it * * *.'

Petitioner's contention on appeal is that Judge Elliott's findings of fact are contrary to the record of the trial and the credible testimony adduced and that, therefore, the refusal to permit petitioner to withdraw his plea of guilty was a clear abuse of judicial discretion. The state's position is that despite the fact there is no transcript of the proceedings during which petitioner's plea of guilty was accepted, nevertheless a review of the entire record in the case indicates that adequate and substantial factual support exists for the trial court's determination that petitioner has not sustained his burden of proof and that no manifest injustice occurred in accepting his plea of guilty.

Defendant insists he is innocent of the crime charged. He testified he was in deadly fear of the two deputy sheriffs who took him from the jail to the court house on the day of his plea and who tole him that if he did not plead guilty they would shoot him to save the county the expense of a trial, would say that he had tried to escape again (petitioner had escaped from the Clay County jail for a period of a week or so while awaiting trial) and that if he got near any members of his family in the court room the officers would cut him in half; that he actually did not plead guilty himself but that his lawyer answered the judge's questions and entered a plea of guilty; that the petitioner was not asked at any time by Judge Rooney whether he was acting under compulsion of threats or fear or whether his plea was made voluntarily and with a full understanding of what the consequences were.

Judge Rooney's testimony was that he had only a hazy recollection of the sentencing of petitioner; that petitioner was represented by employed counsel and at that time it was Judge Rooney's practice not to make a record of proceedings in such cases; that on pleas of guilty to serious charges there were times when he would interrogate the lawyer 'considerably' in the presence of the client, but it was not his practice to question the authority of the attorney to enter a plea of guilty. As to whether he interrogated petitioner about the plea, Judge Rooney said, 'It would be very doubtful if I did. I may have talked to the attorney that represented them in the presence of their client.' Judge Rooney testified it was not brought to his attention that petitioner had been threatened or coerced. He said had he had any inkling of any such thing he would have questioned counsel at great length and would have asked counsel to permit him to interrogate the defendant about these matters.

In the federal court hearing, Mr. Brown testified about visits with petitioner in jail prior to going to court. The questions never did get to the point of what Brown's recollection was of what took place in court on the occasion of the guilty plea. Questions were started to be put to Mr. Brown on whether petitioner had declared his innocence and Brown's testimony was discontinued pending resolution of the question of how far petitioner had waived the attorney-client privilege and whether the state was attempting to use the inquiry as a discovery proceeding in case it turned out there had to be a trial of the charge against petitioner. In the hearing before Judge Elliott, Mr. Brown was not called. Judge Elliott offered to call Mr. Brown to the stand as the court's own witness, but neither side accepted the offer.

The prosecuting attorney, called by the state as a witness, testified that when petitioner was asked what his plea was, he said, 'I am guilty, I plead guilty'; that Judge Rooney asked defendant if he knew the consequences of such a plea and defendant nodded yes; that defendant knew what the penalty could be, understood he was pleading guilty under the habitual criminal act to the crime of armed robbery in the first degree; that Judge Rooney inquired if it was his own voluntary plea made after he had consulted with counsel; whether threats, pressure or undue influence had been exerted upon him, to which petitioner said, 'No, I am guilty, I plead guilty.' As opposed to this, however, the prosecutor also testified that he did not remember whether Judge...