Dabbs v. State, 9324
| Decision Date | 28 December 1972 |
| Docket Number | No. 9324,9324 |
| Citation | 489 S.W.2d 745 |
| Parties | Terry Maurice DABBS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Charles M. Cable, Kennett, for movant-appellant.
John C. Danforth, atty. Gen., Allan D. Seidel, Asst. Atty. Gen., Jefferson City, for respondent.
Terry Dabbs appeared with counsel August 23, 1971, in the Circuit Court of Pemiscot County and pleaded guilty to exhibiting a dangerous and deadly weapon. § 564.610. 1 He was sentenced to five years and paroled without supervision. The parole was revoked August 30, 1971, whereupon Dabbs was confined in the Missouri Department of Corrections at Jefferson City. Before us now is Dabbs' appeal (as movant-appellant) from the order overruling a Rule 27.26 motion (filed September 22, 1971) to vacate the judgment and sentence. The order was made following a full evidentiary hearing before a special judge; movant was represented by counsel of his choice. In his pro se motion, Dabbs alleged that he had been 'denied and deprived the right of effective service of legal counsel' and that his plea of guilty was involuntary because he did not understand the nature of the charge against him and because he was under pressure 'due to family troubles and was in a confused state of mind.' 2 The scope of the motion was broadened by the indulgence of the special trial judge at the hearing so that, according to appellant's brief prepared by his counsel '(t)he sole question (on appeal) is whether or not (the) plea of guilty . . . was voluntary or was the result of (mental) duress, coercion, and persuasion.' 3
The evidence indicates the 35-year-old movant had frequent and numerous adverse encounters with the law, including a three-year sentence in the Arkansas State Penitentiary 'on a charge of obtaining personal property by false pretenses and violation of the hot check law.' Prior to July 1971, Dabbs had been admitted to bail on four felony charges then pending in the Circuit Court of Pemiscot County. The charges and the amount of bond on each were described as (1) burglary and larceny, $15,000; (2) cheat and defraud, $1,000; (3) grand larceny, $5,000; and (4) the charge to which he pleaded guilty, exhibiting a dangerous and deadly weapon, $5,000. Also pending against movant in the Pemiscot County Circuit Court was a misdemeanor charge of 'public drunk' for which no bond had been required. His mother was the lone surety on all of these bonds.
After the crime had been committed to which movant later pleaded guilty, he was charged with a like offense. This was dismissed, however, upon the request of the complaining witness. Shortly before July 1, 1971, movant was picked up on a charge of 'suspicion of burglary' filed against him by the State of Louisiana; three days thereafter he was freed on another $5,000 bond presumably provided by his mother. It was stipulated that if Dabbs' ex-wife had been present at the hearing on the Rule 27.26 motion, she would testify that shortly before the first of July 1971, she reported or had reported to the Circuit Judge of Pemiscot County that Dabbs had threatened to kill the judge or have him killed. The prosecuting attorney testified he had been informed the threat included the sheriff and himself, in addition to the judge. Dabbs did not deny having made such a threat. In any event, on July 1, 1971, the court ordered the bonds doubled on the four felony charges than pending in the Circuit Court of Pemiscot County and fixed bail on the misdemeanor charge at $10,000. Rule 32.06. This resulted in movant's arrest and incarceration for want of $62,000 in bonds. Dabbs did not undertake to get the bonds reduced, a procedure permitted by Rule 32.08, and his mother stated she had not attempted 'to make a bond again for him' because the prosecutor 'said I couldn't make his bond.' The prosecuting attorney agreed 'I may have' so stated to movant's mother for the reason 'that she is on a number of bonds already.'
Dabbs and his lawyer appeared before the court July 7, 1971, on the State's motion for mental examination (§ 552.020), which movant's counsel did not oppose. Following a colloquy of all concerned anent movant's many legal problems and difficulties, the judge observed that Dabbs' conduct suggested 'either chronic alcoholism or a mental defect.' When asked for his thoughts on the subject, Dabbs replied: Dabbs' examination was conducted at the Missouri State Hospital at Fulton; the results were that
According to movant's testimony, he was advised the judge, on a guilty plea to exhibiting a dangerous and deadly weapon, 'would accept five years out of the state,' and that this misdemeanor charged would be dropped. Nothing was said of the other three felony cases or the bonds set on those charges. When asked concerning what Dabbs was told regarding a trial on the charge if he decided not to plead guilty, movant said he was informed 'it might be a month or it might be two months or it could be a year if I want it to be.' (Our emphasis). The prosecuting attorney testified that in a conversation he had with Dabbs
In summary, Dabbs concludes he was subjected to duress and coercion because 'there was no way' he could make the increased bonds and this resulted in his thinking his 'position in the jail was hopeless . . . I had been there so long it looked like I was going to stay there and I got tired being there and so I decided to plead guilty and get out of the state.' He contends the persuasion came about through the promise of freedom by way of an unsupervised parole, coupled with the assurance the misdemeanor charge would be dropped. The findings of fact prepared by the special judge in this case assessed movant's situation in jail to be no more coercive than that of any other incarcerated defendant awaiting trial and concluded: ...
To continue reading
Request your trial
-
Jackson v. State
...Motion, the lack of merit of same is demonstrated by the following cases, to wit: Burks vs. State (Mo.), 490 S.W.2d 34; Dabbs vs. State (Mo.App.), 489 S.W.2d 745; Abercrombe (Abercrombie) vs. State (Mo.), 457 S.W.2d 758; Vaughn vs. State (Mo.), 443 S.W.2d 632; Fleck vs. State (Mo.), 443 S.W......
-
State v. Clark
...and determine that issue (as Pate mandates), but allows the prosecutor or the defendant to share that initiative. Dabbs v. State, 489 S.W.2d 745, 747 (Mo.App.1972); McCarthy v. State, 502 S.W.2d 397, 403(6) (Mo.App.1973). That procedure provides a precaution for the integrity of the crimina......
-
Hendrix v. State
...cannot be bottomed on claims printed in movant's brief (State v. Freeman, 489 S.W.2d 749, 753(12) (Mo.App.1973); Dabbs v. State, 489 S.W.2d 745, 748(5) (Mo.App.1972)), and the burden of establishing and demonstrating prejudice resulting from absence of counsel at the preliminary hearing res......
-
State v. Thompkins
...procedure is provided by Rule 32.08, V.A.M.R., and subsequently by habeas corpus if that should prove unsuccessful. Dabbs v. State, 489 S.W.2d 745 (Mo.App.1972). In the federal system a substantially analogous procedure exists--a motion for reduction, and a timely appeal from an order denyi......