Crego v. State
| Decision Date | 08 December 1969 |
| Docket Number | No. 2,No. 54450,54450,2 |
| Citation | 447 S.W.2d 550 |
| Parties | Leonard Lee CREGO, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Arkley W. Frieze, Carthage, for movant-appellant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
BARRETT, Commissioner.
On May 7, 1962, Leonard Lee Crego entered a plea of guilty to a charge of armed robbery and was sentenced to twenty-five years' imprisonment. Upon the robbery charge he was represented by Mr. Roy Coyne to whom he claims to have paid a fee of $1500.00. In this 27.26 proceeding, perhaps more accurately a 27.25 proceeding to withdraw a plea of guilty, instituted six years later, September 3, 1968, the court took 'judicial knowledge of the fact that Roy Coyne practiced law in this County for approximately 50 years, served several terms at different times as Prosecuting Attorney, was widely known as a criminal lawyer who was a hard fighter for his client and an able lawyer.' Upon the hearing of his 27.26 proceeding he was represented, by court appointment, by the equally well-known and respected Senator Frieze. Senator Frieze did not propare his 27.26 motion, however. That was a pro se motion and while the appellant employed the form supplied in the rule he did not carefully comply with its plain direction but has included a long list of miscellaneous citations to federal cases and irrelevant statements with respect to constitutional rights. Dates here are important, as stated, the plea of guilty was entered on May 7, 1962, before Honorable Ray Watson, the motion to vacate was filed on August 28, 1968, by Judge was heard on November 26, 1968, by Judge Watson who made his findings of fact and denied the motion on December 12, 1968.
As stated, on August 28, 1968 (the transcript in obvious error says '1969') Crego filed his pro se motion to vacate and material here he made and swore to these allegations that his plea of guilty was involuntary and violative of due process for the following reasons:
'1. That the movant's plea of guilty was made as a result of a 'PROMISE' from the prosecutor. (Emphasis by appellant.)
2. That the prosecutor promised the movant if he would make a statement, and enter a plea of guilty, he (the prosecutor) would drop charges on Lettie B. Thorp (a friend of the movant's) and that the movant would receive a 10-year sentence in exchange for his plea of guilty.
3. That the prosecutor misled the movant and induced him to plead guilty by said 'PROMISE."
The only mention of his own attorney, Mr. Coyne, throughout the proceeding was in answer to question 15 and its six subdivisions and question 16; that from preliminary, arraignment, plea of guilty, sentencing and throughout 'all the proceedings' he was represented by Mr. Coyne. It was developed on his direct examination that he did not learn until after the filing of this motion on September 3, 1968, and just before the hearing of the motion, and through Senator Frieze that Mr. Coyne was dead.
'Q. (Senator Frieze) Have you recently learned by a letter from me that Mr. Coyne had died?
A. Yes, sir.'
And upon the trial of this proceeding, instead of testifying as he solemnly affirmed in his motion that the prosecuting attorney, Mr. Tatum, misled him he testified that trial date was set for May 7, 1962, and he intended to stand trial but on that date And so the appellant said, He said, 'The only reason I changed my plea from not guilty to guilty was the fact that through Mr. Coyne, I understood that I would receive a sentence of ten years or that that was what would be recommended by the Prosecuting Attorney.' And, as to the prosecuting attorney, Mr. Tatum, and contrary to the allegations of his motion:
'Q. Mr. Crego, did you at any time from the time you were arrested up until and after the time of your sentence to the twenty-five years in the penitentiary on May 7th, 1962, have any conversation at all with Stewart Tatum who was the Prosecuting Attorney of Jasper County? You don't claim that you had the conversation yourself with him, do you?
A. No, sir, I didn't.
Q. But you do say that you did rely upon the representations and statements made to you by your attorney, is that correct, sir?
A. That is true.'
Since as stated there was no allegation in the appellant's carefully prepared motion with respect to misrepresentations by his own hired lawyer or any claim of incompetent counsel his first step here is to invoke Civil Rule 55.54, V.A.M.R.: 'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.' It is not necessary to determine the propriety of this procedure, it is assumed that the basis of his claim of relief is the misrepresentation of his lawyer, Mr. Coyne. In this connection Mr. Tatum testified in this proceeding that on May 7, 1962, he was ready for trial, had subpoenaed his witnesses and the only promise he ever made to Mr. Coyne was 'none other than this case...
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People v. Butler
...P.2d 673 (1970); People v. Williams, 44 Ill.2d 334, 255 N.E.2d 385 (1970); State v. Jackson, 173 N.W.2d 567 (Iowa, 1970); Crego v. State, 447 S.W.2d 550 (Mo., 1969); Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969). We agree with our sister states. See also Linkletter v. Walker, 38......
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Flood v. State, 56269
...that Boykin v. Alabama, supra, operates retroactively and that we apply its teachings to this case. We held in Crego v. State, Mo., 447 S.W.2d 550, 553(2) (December, 1969) that Boykin would not be applied retroactively and adhered to that decision in State v. Grimm, Mo., 461 S.W.2d 746, 752......
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Nachtigall v. Erickson
...courts have given Boykin prospective application citing Halliday as precedent. See In re Tahl, supra; Ernst v. State, supra; Crego v. State, Mo., 447 S.W.2d 550; State v. Griswold, 105 Ariz. 1, 457 P.2d 331; Montanye v. State, 7 Md.App. 627, 256 A.2d 706; Child v. State, Me., 253 A.2d 691; ......
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State v. Reese
...238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), contending that decision requires reversal of this judgment. We cannot agree. In Crego v. State, Mo., 447 S.W.2d 550, and State v. Roach, Mo., 447 S.W.2d 553, this court held Boykin and McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.E......