Coleman v. State, 56183

• Decision Date: 13 December 1971
• Docket Number: No. 1,No. 56183,56183,1
• Citation: 473 S.W.2d 692
• Parties: Larry Wayne COLEMAN, Appellant-Movant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 692

473 S.W.2d 692

Larry Wayne COLEMAN, Appellant-Movant, v. STATE of Missouri, Respondent.

No. 56183.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

Roswell P. Henderson, Moberly, court appointed attorney for appellant.

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

HOUSER, Commissioner.

This is a proceeding under Criminal Rule 27.26, V.A.M.R., to vacate and set aside a judgment of conviction and sentence of three years' imprisonment imposed upon Larry Wayne Coleman by the Circuit Court of Randolph County on December 18, 1968, upon a plea of guilty to a charge of escape from the Missouri Training Center for Men on June 19, 1968.

Following an evidentiary hearing at which movant was present personally, represented by appointed counsel, and at which he testified and adduced the testimony of three fellow prisoners in his behalf, the circuit judge filed findings of fact and conclusions of law and overruled the motion, hence this appeal.

Movant seeks reversal of the order of the circuit court for the following reasons: his plea was involuntary; he had ineffective counsel; the court failed to comply with Criminal Rule 25.04, and the information was defective in substance and form.

PLEA INVOLUNTARY?

Movant contends that his guilty plea was involuntary for the following reasons as to each of which movant gave supporting testimony:

(1) that he pleaded guilty in order to secure early release from the punishment of confinement in 'the basement' at the penitentiary, where escapees and other offenders against institution rules are customarily kept and segregated while awaiting trial; that he was denied his usual cigarettes, and could spend only a dollar or two a month, was denied visitation with the regular prison population, and kept in a cell with four persons, a cell designed for two persons. He testified that he had no choice but to plead guilty because he knew that if he awaited a trial by jury he might have to endure punishment of confinement in the basement for a year or more and knew it was the practice to release inmates confined in the basement as soon as they 'got their time.' The prison classification director testified to the prison policy of placing returned escapees in maximum security from which they are released after sixty days or after prosecution for escape, whichever comes first. Movant was confined in the basement from November 27, 1968 to December 18, 1968. Three fellow prisoners in the basement testified that they advised movant as to the policies and procedures relating to release from maximum security but none testified to any oppressive or coercive conditions. One prisoner testified that movant was nervous, upset and extremely agitated while being held in the basement but movant conceded that he was not beaten or mistreated by the guards. The court found 'that this claimed coercion or duress was not such as would nullify the sentence and judgment entered by the court upon movant's plea of guilty,' and that in pleading guilty movant 'exercised his own free choice with a full knowledge of his rights.' We cannot say that there are insufficient facts of record to support this finding of voluntariness. As in Langdeau v. South Dakota, 8 Cir., 446 F.2d 507 (1971), in which petitioner asserted that he pleaded guilty because of conditions of his confinement in a county jail (the jail not segregated into cells, the jail crowded beyond its normal capacity, harassment by other prisoners, dislike of the food served), so it is in the case before us.

The question is whether the plea of guilty was 'an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences. '' McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763, 771. ' (t)he fact that the jail conditions 'caused' the plea does not demonstrate that petitioner was unaware of all the surrounding factors and their 'likely consequences.' Here the record unequivocally demonstrates to the contrary. The facts are insufficient to hold as a matter of law that invidious discrimination or psychological coercion induced an involuntary guilty plea.' Langdeau v. South Dakota, supra, 446 F.2d l.c. 509. In Collins v. State, Mo.Sup., 450 S.W.2d 186, we denied postconviction relief under Criminal Rule 27.26 founded upon a contention that a plea of guilty was induced by conditions of jail servitude while awaiting trial. We repeat here the quotation from Verdon v. United States, 8 Cir., 296 F.2d 549, 552, that '(d)issatisfaction with a penal condition, brought about by one's own conduct, and a hope that by a guilty plea a different kind of incarceration might be achieved are scarcely factors of involuntariness in a plea.' The trial court's finding on this point is not clearly erroneous on this record.

(2) that he pleaded guilty to a charge of escape because the prosecuting attorney threatened to file against him under the Habitual Criminal Act, in which case he understood he would receive the maximum sentence of five years if he did not plead guilty; that he believed he was not charged under the Habitual Criminal Act and told his counsel that the prosecuting attorney had made this threat. On cross-examination the prosecuting attorney showed movant the original information substantiating the fact that he had been charged under the Habitual Criminal Act from the outset. Movant admitted that there was never any secret about the range of punishment being from two to five years; that he knew he could get five years if he went to trial before a jury, and that he did not understand that he would automatically get five years under the Habitual Criminal Act. The prison official testified that he and movant had no conversation having anything to do with sentences. The court found against movant on this conflicting testimony; found that movant did not plead guilty under duress of threats of prosecutor or prison authorities. This finding has support of record.

(3) that he pleaded guilty under the belief that the sentence for escape would run concurrently withf the sentence he was already serving; that neither his counsel, the prosecuting attorney nor the court advised him to the contrary; that a prison official told him the sentences 'would be run together.' The prison official specifically denied this fact. On cross-examination movant conceded that before accepting the plea of guilty the court asked him whether he understood that whatever punishment was imposed on the plea of guilty would be 'in addition' to whatever sentences he was then serving; that he understood this and answered 'Yes.' The court found that no promise of concurrency was made to movant; that in fact the court had explained to movant that the sentence imposed would be additional, and that the plea was entered knowingly and with full information as to movant's rights in this respect. This finding is not clearly erroneous.

INEFFECTIVE COUNSEL?

Movant contends that court-appointed counsel had no experience in criminal law; admitted to movant that he was not qualified to handle a criminal case and particularly not to try this case before a jury; made no investigation of the facts, conferred with movant only one time for five minutes before the plea was entered and during that five-minute interview did not discuss the evidence or the merits of the case; that counsel's representation was perfunctory and ineffective. Appointed counsel testified as follows: He counselled with movant before the preliminary hearing was waived in magistrate court and again after he was appointed in circuit court. He answered all of movant's questions and inquired whether he had any defenses. Movant related no facts which could be used as a defense and directed his attention to no witnesses to be interviewed to obtain facts which...