Brodkowicz v. State, No. 56475

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM; HOLMAN, P.J., and BARDGETT; SEILER; SEILER
Citation474 S.W.2d 822
PartiesThaddeus Francis BRODKOWICZ, Appellant, v. STATE of Missouri, Respondent
Decision Date13 December 1971
Docket NumberNo. 56475,No. 1

Page 822

474 S.W.2d 822
Thaddeus Francis BRODKOWICZ, Appellant,
v.
STATE of Missouri, Respondent.
No. 56475.
Supreme Court of Missouri, Division No. 1.
Dec. 13, 1971.
Motions for Rehearing or to Transfer to Court En Banc Denied
Jan. 10, 1972.

Page 823

Haseltine & Springer, Horace S. Haseltine, Springfield, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

Thaddeus Francis Brodkowicz appeals from an order denying his Criminal Rule 27.26, V.A.M.R., motion to vacate a 15-year sentence entered upon a plea of guilty in 1963 to a charge of first degree robbery. His pro se motion, filed in February, 1969 and amended in August, 1970 shortly after the appointment of counsel, alleged (1) that his plea was involuntary and induced by coercion, threats, ignorance, fear, promises of lenience and promises of his counsel that he would receive a 10-year sentence; that his plea was entered through inadvertence and without a clear understanding of the charge; that he was subjected to physical brutality and abuse, torture, harassment, intimidation, threats and prolonged solitary confinement to compel a guilty plea; (2) ineffective assistance of counsel during arraignment, plea and sentencing and (3) failure of the sentencing court to comply with Criminal Rule 25.04 before accepting the guilty plea.

Movant, 21 years of age, was arrested December 17, 1962 and charged under the Second Offender Act. He waived a preliminary hearing. On January 3, 1963 he was arraigned. On that date two attorneys were appointed to represent him. He pleaded guilty February 20 and was sentenced on March 1, 1963.

EVIDENCE SUPPORTING THE MOTION

Movant testified as follows: On December 30 he and fellow prisoner Danny started a 'ruckus' in their cell on the second floor of the jail, expecting that they would be transferred to solitary confinement and intending to escape before they reached 'the hole' downstairs. On the way to the hole the jailer without any provocation kicked movant in the back. Movant pulled out a blackjack he had made and the two fought, the jailer swinging his keys and movant swinging his blackjack. An officer came up from behind, hit movant on the head with a blackjack, knocked him down and disarmed him. Other officers, called, took the two prisoners to the hole and there they were 'worked over' with fists and blackjacks. Movant was struck over the kidneys. As a result of the fight and beating he was black and blue, had a cut on the side of his head, was bleeding, and for two days passed blood in his bowel movements. He received no medication. After movant's arraignment he and Danny were placed in 'dry cells' (cells with a toilet and a bed but no running water) on the second floor. On or about February 10, 1963 movant and Danny broke up a steel bowl and fashioned cutting tools. Danny tried to cut the back plate off the lock in his cell. Movant tried to cut a bar out of his cell door. The jailer, who caught them in the act, required them to hand out everything in the cell, including their clothes. The jailer returned with 5 or 6 deputies. One of the deputies entered movant's cell with a leather belt 2 or 2 1/2 inches wide, a half inch thick and 2 1/2 or 3 feet long. It had a buckle on it. He said 'You're acting like a little kid. We're treating you like a little kid.' When he

Page 824

threatened to hit movant in the face movant put his hand up in front of his face, whereupon the deputy struck movant on the testicles with the leather strap, and then struck him on the buttocks and back several times. Each blow laid open the skin, resulting in scars. Movant crawled on his hands and knees in an effort to get out of the cell. Another deputy hit him on the head with a slapjack, which is a flat blackjack 9 or 10 inches long, with a piece of metal which snaps back after it hits. Movant was nude and unarmed and was rendered unconscious. He struck no one on this occasion. One of the blows ripped the scab off his head, which started bleeding again. He had 4 or 5 lumps on his head. In a matter of minutes the sheriff appeared. He was irritated; mad; he called movant a foreigner (movant was from Chicago) and said he did not like people out of the state coming there trying to tear his jail down; that movant better get his a_ _ out of there and get over to the penitentiary, where he 'would be better off'; that the sheriff ran the couty and would see to it that he got 50 years; that he had other charges of attempted escape and assault he would bring if he didn't get out of the jail; that these charges would be placed against him as a detainer and that he would never make parole. A doctor was called but did not respond. Movant was compelled to remain in the dry cell without clothes, bedclothes or mattress. He slept on the steel bed without any blankets or cover. Thereafter until the day he went to the penitentiary he was naked night and day, except that he was given clothes to wear when his lawyers came to interview him.

He saw his lawyers a few days after the second encounter with the officers. They knew about the escape attempts. They told him that the way things were going, with the confession and the escapes, he wouldn't stand a chance if he went to trial and would probably get life imprisonment; that his best bet was to plead guilty and throw himself on the mercy of the court. He told them he would think it over. A few days leter he talked to his lawyers again. He wanted to know what he would get and they said he would get 10 years. Movant thought the attorneys had reached a 10-year agreement with the prosecuting attorney or the court. He considered it a 'guarantee' that he would only get 10 years.

Movant testified that in his preplea conferences with counsel he did not complain to them about the beatings. He figured he was 'in the wrong' so he said nothing about it, but they could see his physical condition. He conceded that counsel advised him as to his rights, including right to a jury trial and the range of punishment, and that he told them that he had signed a written confession. He testified that the confession was not coerced or given for promises but voluntarily given after warning that it might be used against him. They discussed trial and at their first meeting the attorneys did not encourage him to plead guilty.

Movant was corroborated to some extent with reference to the happenings on February 10 by the oral testimony of fellow prisoner Ramsey, who declared that he heard a commotion in the hall, observed 4 or 5 deputies, and saw movant and Danny in the nude; that they were kept nude thereafter; that the deputies were arguing with movant and Danny about cutting a door and tearing up the jail; that the deputies threatened to beat them; that movant was struck with a slapjack on the head once, and on the back 2 or 3 times, while his hands were up against the wall; that neither movant nor Danny struck any of the deputies; that movant's back was bruised after this beating; that the sheriff arrived, angry, shouting and complaining about tearing up his jail. Ramsey saw no leather strap used and failed to confirm the threats allegedly made by the sheriff.

A written statement by Rex Peck, a prisoner at the jail on February 10, admitted in evidence for the consideration of the court, corroborated movant in these respects: Peck heard a commotion and saw the jailer in the hallway 'cussing' Danny. Six deputies arrived. Danny was whipped. He heard the deputies beating movant, who

Page 825

was nude. His back was bleeding and had welts on it. One of the deputies hit him in the face with his open hand and knocked him back against the toilet. The sheriff appeared the next day. The sheriff was yelling. He called movant a foreigner and said he was going to break them of the habit of coming into Greene County and raising hell; that the judge was a personal friend of his and would do anything he recommended and he was going to recommend 50 years unless movant pleaded guilty and got out of his jail; that he referred to the possibility of filing other charges against him.

The record of the proceedings at the time of the plea shows that the court inquired whether defendant had had a chance to discuss the case with his court-appointed lawyers; whether they had explained the crime to him and the possible punishment; whether after consulting with them and being advised by them he was ready to answer the charge against him. After receiving affirmative answers from movant the court read the charge, explained that it was a charge of first degree robbery and asked how he wanted to plead, guilty or not guilty. No inquiry was made about promises or threats, his understanding as to what sentence he would receive, whether he was entering the plea voluntarily, or with respect to his treatment in jail awaiting trial. The court ordered a presentence...

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10 practice notes
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...of illegal search is not cognizable in 27.26 proceedings. Beach v. State, 488 S.W.2d 652, 655 (Mo.1972); Brodkowicz v. State, Page 471 474 S.W.2d 822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 77......
  • Brodkowicz v. Swenson, Civ. A. No. 20119-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • February 22, 1973
    ...appeal from the denial of petitioner's 357 F. Supp. 181 Rule 27.26 motion to the Missouri Supreme Court in Brodkowicz v. State, Mo. 1971, 474 S.W.2d 822, and (2) a certified transcript of proceedings on petitioner's plea of guilty and sentencing and certified judgment in State v. Brodkowicz......
  • Robinson v. State, No. 56987
    • United States
    • Missouri Supreme Court
    • July 17, 1972
    ...438 S.W.2d 232; Drew v. State, Mo.Sup., 436 S.W.2d 727; State v. Grimm, Mo.Sup., 461 S.W.2d 746(2); Brodkowicz v. State, Mo.Sup., 474 S.W.2d 822, 828--829(6); Schuler v. State, Mo.Sup., 476 S.W.2d 596(3); Flood v. State, Mo.Sup., 476 S.W.2d 529, 533(2). We are convinced from a reading of th......
  • Bradley v. State, No. 57509
    • United States
    • United States State Supreme Court of Missouri
    • April 9, 1973
    ...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......
  • Request a trial to view additional results
10 cases
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...of illegal search is not cognizable in 27.26 proceedings. Beach v. State, 488 S.W.2d 652, 655 (Mo.1972); Brodkowicz v. State, Page 471 474 S.W.2d 822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 77......
  • Brodkowicz v. Swenson, Civ. A. No. 20119-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • February 22, 1973
    ...appeal from the denial of petitioner's 357 F. Supp. 181 Rule 27.26 motion to the Missouri Supreme Court in Brodkowicz v. State, Mo. 1971, 474 S.W.2d 822, and (2) a certified transcript of proceedings on petitioner's plea of guilty and sentencing and certified judgment in State v. Brodkowicz......
  • Robinson v. State, No. 56987
    • United States
    • Missouri Supreme Court
    • July 17, 1972
    ...438 S.W.2d 232; Drew v. State, Mo.Sup., 436 S.W.2d 727; State v. Grimm, Mo.Sup., 461 S.W.2d 746(2); Brodkowicz v. State, Mo.Sup., 474 S.W.2d 822, 828--829(6); Schuler v. State, Mo.Sup., 476 S.W.2d 596(3); Flood v. State, Mo.Sup., 476 S.W.2d 529, 533(2). We are convinced from a reading of th......
  • Bradley v. State, No. 57509
    • United States
    • United States State Supreme Court of Missouri
    • April 9, 1973
    ...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......
  • Request a trial to view additional results

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