Burgin v. State, KCD
| Decision Date | 31 March 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 522 S.W.2d 159 |
| Parties | George BURGIN, Appellant, v. STATE of Missouri, Respondent. 26813. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, Douglas N. Merritt, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.
Movant pleaded guilty to a charge of assault with intent to kill with malice and was sentenced to fifteen years imprisonment. He filed this motion under Rule 27.26, V.A.M.R., to vacate that sentence. The court below denied relief without holding an evidentiary hearing. The single issue presented on this record is the propriety of the denial of the evidentiary hearing, and upon that issue, the cause must be reversed.
At the time the movant pleaded guilty, he was twenty years old and had an elementary grade education. The movant testified at the time he pleaded guilty that the victim of his assault owed him some money. He said that both he and his victim were 'high off some dope' at the time of the assault. The movant said that when the victim refused to pay the movant the debt, the movant replied, 'Okay, we will just fight.' The movant said that he knocked the victim down three times. He said that after the victim fell to his knees he began to kick him 'a lot of times.' The assault was stopped after some people pulled the movant away from the victim. The movant said that when the people pulled the movant away from the victim they said, 'let him go before you kill him, George.'
Movant pleaded in his motion that he had been promised a sentence of two years by his court-appointed counsel and that he entered his plea in reliance upon that promise. Standing alone, this allegation would not require reversal of the trial court's order denying an evidentiary hearing. The plea proceedings are a part of the record, and the movant answered negatively when the trial court asked if any promise had been made. Smith v. State, 513 S.W.2d 407 (Mo.banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).
The motion, however, further pleads in connection with the promise of a two-year sentence as follows:
'Movant discussed this with his counsel fully, and counsel told movant to say 'no' when the court asked whether any deal had been made or movant would not get the two year sentence.'
This further allegation, if true, would taint the voluntary nature of the plea. The withholding from the trial judge of a promise made destroys the purpose prompting the inquiry by the court. The question by the trial court relating to a 'promise' is intended to determine that the plea is...
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Sanders v. State, 54210
...of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mo.App.1975). This Court has gone further and has recognized that mistaken advice of counsel may in some cases vitiate a guilty plea. In Baker......
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...of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mos.App.1975). 440 So.2d at 283-84. (Footnotes omitted). The State also relies on Sanders v. State, but for the proposition that a defendant, ......
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...of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mo.App.1975). Sanders, 440 So.2d at We have held a plea legally involuntary where the court failed to advise the defendant of a statutorily ma......
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...of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mo.App.1975). 440 So.2d at 283-84. Additionally, in Baker v. State, 358 So.2d 401, 403 (Miss.1978), the Court expressed the position that a re......