Burrell v. State, 54158
| Decision Date | 11 January 1971 |
| Docket Number | No. 1,No. 54158,54158,1 |
| Citation | 461 S.W.2d 738 |
| Parties | Cleveland BURRELL, Jr., Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Thomas J. Downey, Jefferson City, for movant-appellant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Ass't. Atty. Gen., Jefferson City, for respondent.
Movant-appellant appeals from the order and judgment of the Circuit Court of Linn County denying appellant's motion to vacate judgment and sentence filed under Supreme Court Rule 27.26, V.A.M.R. The trial court held an evidentiary hearing and entered findings of fact and conclusions of law. One of the findings made by the trial court is that the plea of guilty entered by defendant was voluntary. The crucial issue in this court is whether under the evidence adduced at the 27.26 hearing the trial court's finding that defendant's plea of guilty was voluntary and with understanding of the nature of the charge as required by S.Ct. Rule 25.04 is clearly erroneous.
Appellant is in the custody of the Missouri Department of Corrections serving a 30-year sentence imposed October 5, 1965, upon appellant's plea of guilty to the charge of rape contained in an amended information under § 559.270, RSMo 1969, V.A.M.S., entitled, 'Rape-victim drugged-penalty'.
On May 6, 1967, appellant filed a motion to withdraw his plea of guilty and to vacate judgment and sentence in the circuit court under S.Ct. Rules 27.25 and 27.26, and the court appointed counsel for appellant. On February 28, 1968, appellant filed a motion to vacate on the form suggested by S.Ct. Rule 27.26, as amended. The evidentiary hearing on these pending motions was held April 2, 1968, and the circuit court entered its findings, order and judgment, denying relief on April 15, 1968. No notice of appeal was filed from this judgment. On August 14, 1968, appellant filed another 27.26 motion in Linn County Circuit Court which was overruled without hearing on August 14, 1968, on the grounds that a similar motion had been filed, heard and overruled. Thereafter, this court granted appellant leave to file a late notice of appeal under Rule 28.07 from the order and judgment of the Circuit Court of Linn County of April 15, 1968.
No transcript of the proceedings at the time of the plea of guilty on October 5, 1965, is available. The trial court was and this court is therefore restricted to the testimony given at the evidentiary hearing held April 2, 1968, for the evidence of what took place at the time of the plea of guilty, judgment and sentence, two and one-half years earlier. At the outset we note that, notwithstanding the unavailability of a transcript of the record of the proceedings on the plea of guilty, it is still the appellant's burden to establish grounds for relief by a preponderance of the evidence. S.Ct. Rule 27.26, V.A.M.R.; State v. Davis Mo., 438 S.W.2d 232, 235; State v. Keeble, Mo., 427 S.W.2d 404, 409; State v. Rose, Mo., 440 S.W.2d 441, 443.
On September 9, 1965, appellant was arrested on a warrant issued on a complaint before the magistrate judge asserting appellant had committed the offense of forcible rape on September 7, 1965. Appellant failed to make bond and was held in jail. Appellant appeared in magistrate court on September 30, 1965, without a lawyer and waived preliminary hearing. An information charging appellant with the crime of forcible rape, which carries a penalty of death or imprisonment of not less than two years, was filed in circuit court. Sec. 559.260, RSMo 1969. On October 4, 1965, appellant appeared in circuit court and the court appointed trial counsel for appellant. Appellant's attorney informed him that he was charged with forcible rape, that the maximum penalty was death and appellant clearly understood this. Appellant repeatedly insisted to his appointed attorney that he was not guilty of rape and would not 'plead guilty to no rape charge.' Appellant's attorney testified that he then spoke to the prosecutor in an effort to get the charge reduced. On that same day an amended information, to which appellant subsequently pleaded guilty, was filed alleging an offense under § 559.270, RSMo 1969, V.A.M.S. The amended information charged:
'* * * that Cleveland Burrell did on the 7th day of September, 1965, at the County of Linn and State of Missouri, willfully, unlawfully and feloniously have carnal knowledge of a woman, to wit, one Cora Alice McGee, who was then and there above the age of 14 years, without her consent by administering to her intoxicating liquor which did produce such stupor as to prevent effectual resistance, * * *'
At the evidentiary hearing on appellant's motion, appellant's testimony was that he continually denied to the sheriff and to his attorney that he was guilty of rape; that after the charge was changed he still told his attorney that, 'I'm not going to plead guilty to no rape charge'; that his attorney said, 'Well, you're not pleading guilty to no rape charge * * * It's something like rape--but there is not actually no forcible rape'. Appellant and his attorney then appeared in court. Appellant's account of the proceedings on his plea of guilty is that the judge asked him how he pleads, that appellant's attorney said 'Guilty'; that he looked at appellant and asked if that was correct and appellant said 'Yes'. That is all the record shows as to what took place at the plea proceedings.
Appellant's appointed counsel, who is a well-respected and competent lawyer, testified that he was appointed to represent appellant on October 4, 1965, and that he consulted with appellant on that same day; that appellant claimed he was not guilty of forcible rape and would not plead guilty to it. The attorney spoke to the prosecutor and the amended information was filed. The attorney believed he read the statute--s 559.270--to appellant and thought appellant understood the second information.
Although the trial judge mentioned that he customarily asks the prosecutor and defense counsel to make a statement at pleas of guilty, there is no evidence of any statement by either in this case, except the court's notes with reference to prior difficulties the appellant was involved in.
During the course of appellant's testimony, the following appears:
'Q Let me ask you this, Mr. Burrell, and I think I have asked it to you before; did you understand that you were pleading guilty to a rape charge when you entered your plea?
'Q Well, what did you think it was, contributing to the delinquency of a minor, or burglary, or larceny, or what kind of a charge did you think it was?
'Q Well, tell me again, what did you think you were entering a plea to?
'A Well, to be truthful the way that I feel that I was entering a plea was to be to a charge that wasn't what you would call rape.
'Q All right; now, you don't call it rape what did you think you were pleading guilty to?
'A From the way it was told to me and explained to me it was distributing liquor to a minor who then and there above the age of 14 in order to have carnal knowledge of her, sex relationship with her.
'So that's what he has stated, thought he stated here is what is in the information that he did plead guilty to.
'MR. PORTER: That is correct.'
The principal question the circuit court had to resolve on the 27.26 hearing was whether appellant's plea was voluntary and, in the context of this case, whether the defendant understood that the nature of the charge in the amended information was rape. The circuit court at the 27.26 hearing was at a disadvantage, as are we, by reason of the absence of a transcript of the proceedings at the time of the plea.
Criminal Rule 25.04, V.A.M.R., provides that the court 'shall not accept the plea (of guilty) without first determining that the plea is made voluntarily with understanding of the nature of the charge.' Criminal Rule 27.25 provides that 'to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.'
The amended information charges an offense under § 559.270 and the range of punishment is from five years to life imprisonment. The offense in the language of the statute is rape although the word 'rape' appears nowhere in the amended information. While we neither indicate nor hold that the amended information was defective for failing to use the...
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