Bradley v. State, 57509

Decision Date09 April 1973
Docket NumberNo. 2,No. 57509,57509,2
Citation494 S.W.2d 45
PartiesJames Z. BRADLEY, Movant-Appellant, v. STATE of Missouri, Respondent
CourtMissouri Supreme Court

Richard D. Schreiber, Clayton, for movant-appellant.

John C. Danforth, Atty. Gen., Vincent F. Igoe, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

James Z. Bradley has appealed from an order overruling a motion filed under Rule 27.26, V.A.M.R. to vacate a judgment of conviction of first degree robbery and a sentence of life imprisonment, entered on March 6, 1957 upon a plea of guilty. We have jurisdiction since the notice of appeal was filed prior to January 1, 1972.

Bradley, accompanied by his attorney, appeared in the Circuit Court of St. Louis County on March 6, 1957, at which time a plea of guilty to the charge of robbery was entered for him by his attorney, who waived the reading of the indictment. Bradley had previously been convicted in the Circuit Court of the City of St. Louis on two charges of robbery and one charge of murder, for which he had received three concurrent life sentences. Negotiations between Bradley's counsel and the assistant prosecuting attorney resulted in an offer by the State to recommend a life sentence, to run concurrently with the other three life sentences. Bradley accepted the State's offer. After the plea of guilty was entered the Court asked the assistant prosecuting attorney for his recommendation. Pursuant to the agreement he recommended a life sentence, to run concurrently with the three previous sentences. The judge announced his intention to follow the recommendation and in pronouncing sentence the court ordered the life sentence to run concurrently with the three life terms.

Bradley contends that the court erred in not vacating the sentence because the plea of guilty was not voluntary or based upon an understanding of the charge, as required by Rule 25.04. Bradley points out that the transcript of the proceedings of March 6, 1957 demonstrates that the indictment was not read or explained to him; that neither the range of punishment for armed robbery, the presumption of innocence, the right against self-incrimination, the right of confrontation, the right to a trial by jury, nor the consequences of a plea of guilty was mentioned or explained to him at the hearing. He also complains that the court did not make a determination of record that the plea was voluntarily entered with understanding of the nature of the charge. Relying upon recent cases 1 Bradley poses the question whether the conviction and sentence should be vacated because the brief record of the proceedings of March 6, 1957 (which patently falls short of present-day requirements) fails to demonstrate substantial compliance with Rule 25.04. In Flood v. State, 476 S.W.2d 529, 533(2) (Mo.1972); Brodkowicz v. State, 474 S.W.2d 822, 828(6) (Mo.1971); State v. Grimm, 461 S.W.2d 746, 752(2) (Mo.1971); Drew v. State, 436 S.W.2d 727, 729 (Mo.1969), and State v. Mountjoy, 420 S.W.2d 316, 324(9) (Mo.1967), we held that in determining whether a plea of guilty was entered voluntarily with understanding of the charge the trial court in a 27.26 proceeding is not limited to the record made at the time the plea was entered but may make the determination on the basis of both that record and the evidence adduced at the hearing of the motion to vacate the judgment. We therefore review both the record of March 6, 1957 and the March 25, 1971 transcript.

Bradley was the only witness at the 27.26 hearing. His counsel, physically afflicted, was unable to speak. The person who was assistant prosecuting attorney in 1957 was not called. The judge was the same judge who conducted the hearing in 1957. Bradley was 20 years old when he pleaded guilty. He had a ninth grade education. His testimony at the 27.26 hearing demonstrates that at the time he pleaded guilty he understood that he was charged with armed robbery; that the law provided a penalty for armed robbery less than life imprisonment; that he had a right to a jury trial; that he appreciated the distinction between consecutive and concurrent sentences; that after conference with his counsel he made the decision to plead guilty to the charge of armed robbery and accept a term of life imprisonment on the basis that the sentence would run concurrently with his previous sentences, and that he was present when the assistant prosecuting attorney positively assured his counsel that the sentence would be concurrent. The March 6, 1957 record shows that Bradley discussed the case with his mother and counselled with his attorney, and before pleading guilty had been fully advised that the State would recommend a life sentence to be served concurrently. Bradley was not unacquainted with the consequences of a plea of guilty to a charge of armed robbery; he had that experience twice before. From a consideration of both transcripts we find no error in the trial court's ruling that Bradley's plea was voluntarily, understandingly and knowingly made, and not induced by threats, coercion or inducements.

Bradley's previous criminal record placed him in a difficult position as he faced a third armed robbery charge. After counseling with his mother and his attorney, an able and experienced criminal lawyer, seeking a disposition of this fourth serious criminal charge on the best possible terms, Bradley chose to enter into the arrangement offered by the State. The court approved the agreement, ascertained that Bradley had advance information as to the State's offer, accepted the plea of guilty and ordered concurrent service of the sentence. The State kept and performed its part of the agreement to the letter. Bradley received what he bargained for and has no basis for present complaint, unless as he now claims the conviction must be vacated on the ground that Bradley's counsel misled him on the matter of the possibility of parole.

At the 27.26 hearing Bradley gave uncorroborated testimony to the effect that he pleaded guilty and accepted the life sentence upon a misapprehension arising out of misleading advice and assurance of his counsel that if he pleaded guilty and received a concurrent sentence he would be eligible for parole but if he pleaded not guilty, stood trial and was convicted by a jury, the sentence would run consecutively, i.e., be added on to the three life sentences and that in such case he would be ineligible for parole. By the action of the trial court in overruling the motion to vacate it is obvious that the court did not credit or believe Bradley's testimony that his counsel so advised him and that this induced him to plead guilty. Bradley's argument on this point is based entirely upon the assumption that this actually occurred. It is not, however, an established fact simply because Bradley so testified. The trier of the fact had a right to, and evidently did, reject Bradley's testimony about parole eligibility, even though there was no...

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29 cases
  • McCrary v. State
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...1. Sentence greater than co-defendant's (absent showing that court was engaged in arbitrary or discriminatory conduct). Bradley v. State, 494 S.W.2d 45, 49 (Mo.1973) Shields v. State, 491 S.W.2d 6, 9--10 (Mo.App.1973) Phillips v. State, 486 S.W.2d 237, 239 (Mo.1972) 2. Power of trial court ......
  • Jackson v. State
    • United States
    • Missouri Court of Appeals
    • March 8, 1977
    ...State (Mo.App.), 512 S.W.2d 215; Ross vs. State (Mo.App.), 517 S.W.2d 185; Hogshooter vs. State (Mo.App.), 514 S.W.2d 109; Bradley vs. State (Mo.), 494 S.W.2d 45; Perryman vs. State (Mo.App.), 506 S.W.2d 480; Smith vs. State (Mo.), 513 S.W.2d "Since this Court has determined and concluded t......
  • Fields v. State
    • United States
    • Missouri Supreme Court
    • November 6, 1978
    ...second appeal." Rule 27.26(b)(3). It is not the proper vehicle for the relitigation of a defendant's guilt or innocence, Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973); Robinson v. State, 491 S.W.2d 314, 315 (Mo.1973). Its "sole purpose . . . is to determine whether defendant's original tria......
  • Holloway v. State, WD
    • United States
    • Missouri Court of Appeals
    • March 23, 1999
    ...all that is necessary is that the plea be knowing and voluntary." Bird v. State, 657 S.W.2d 315, 316 (Mo.App.1983)(citing Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Bounds v. State, 556 S.W.2d 497 The defendant ......
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