Carter v. State, 56552

• Court: Missouri Supreme Court
• Writing for the Court: HOLMAN; SEILER; BARDGETT
• Citation: Carter v. State, 472 S.W.2d 370 (Mo. 1971)
• Decision Date: 08 November 1971
• Docket Number: No. 56552,No. 1,56552,1
• Parties: Raymond CARTER, Movant-Appellant, v. STATE of Missouri, Respondent

Page 370

472 S.W.2d 370

Raymond CARTER, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 56552.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1971.

Keathley & Little, Poplar Bluff, for movant-appellant.

John C. Danforth, Atty. Gen., Thomas H. Stahl, Special Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Presiding Judge.

Movant (hereinafter referred to as defendant) has appealed from an order of the circuit court, made after an evidentiary hearing, overruling his motion to vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R. Although not mentioned in defendant's motion, Rule 27.25 is also involved as the true relief he seeks is to withdraw his plea of guilty. That rule 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.'

Upon this appeal defendant contends that the court erred in overruling his motion because his plea of guilty was not voluntary since 'the evidence showed that the court accepted appellant's plea of guilty without first determining that appellant understood the nature of the charge and the consequences of a plea of guilty and without first advising appellant of the range of possible punishment, and without first advising appellant of his right to a jury trial or his right to remain silent and avoid self-incrimination, or his right to confront his accusers, all at a time when there was no evidence that his court-appointed attorney had so advised him nor other evidence that appellant was aware of these matters.'

At the time defendant entered his plea of guilty (Oct. 6, 1969) the court first read him the information and then the following occurred: 'The Court: Mr. Carter, do you understand the charge as read to you? Mr. Carter: Yes, sir. The Court: Do you have any question about that charge? Mr. Carter: No. The Court: What plea do you enter to the charge as read, guilty or not guilty? Mr. Carter: Guilty. The Court: Do you have a statement to make, Mr. Batson (prosecuting attorney)? Mr. Batson: Yes, your Honor. On or about the 20th of August, 1969, the information that I have in my file indicates that this defendant was riding around drinking with another boy or two and then later in the evening he went to the prosecuting witness' home and tore a screen off a window and crawled in through the window and picked up a board and hit the prosecuting witness trying to knock her out and wasn't successful but he went ahead and in her semi-conscious condition raped her and had actual carnal knowledge of this woman. The State would recommend ten years in the State Department of Corrections. The Court: Do you have a statement, Mr. Little (attorney for defendant)? Mr. Little: Only this, your Honor, in view of the boy's age and the fact that he was drinking on this occasion, we would join in the request that he not serve any more than ten years in this case. * * * The Court: Is what these gentlemen told the Court true, is that true? Mr. Carter: Yes, sir. * * * The Court: Has anybody made any promises to you at all to get you to plead guilty? Mr. Carter: No.' The court then sentenced defendant to imprisonment for a term of ten years.

At the evidentiary hearing defendant testified that he had an eighth grade education but did not understand the nature of the charge against him nor what he was doing when he entered his plea of guilty; that he was not aware of the range of punishment for the offense and was not advised of his right to remain silent; that one of the deputy sheriffs told him that he could get 60 or 70 years' imprisonment; that when he pleaded guilty he 'just didn't know what (he) was doing.' On cross-examination defendant admitted that he knew he was charged with forcible rape and knew that that meant having sexual intercourse with a woman by force and against her will. He also admitted that he had signed an exhibit which contained warnings as to his rights. He further admitted that at the time he entered his plea of guilty he understood that he could receive at least ten years' imprisonment. When defendant was asked whether his attorney had told him the range of punishment and discussed with him the recommendation of the prosecuting attorney if he pleaded guilty, he replied that he didn't remember. When asked why he pleaded guilty when he was afraid he might get 60 or 70 years, he answered, 'I don't know, maybe I thought that if I would come down here and cop out I might get less.' Defendant testified that he had been coerced into making a confession but that point is not raised on this appeal and that evidence will be omitted.

The State presented two officers...