Dean v. State, 36398

• Decision Date: 16 March 1976
• Docket Number: No. 36398,36398
• Parties: Kevin DEAN, Plaintiff--Appellant v. STATE of Missouri, Defendant--Respondent. . Louis District
• Court: Missouri Court of Appeals

Page 301

535 S.W.2d 301

Kevin DEAN, Plaintiff--Appellant v. STATE of Missouri, Defendant--Respondent.

No. 36398.

Missouri Court of Appeals, St. Louis District.

March 16, 1976.

Motion for Rehearing En Banc or for Transfer to Supreme

Court Denied April 13,

1976.

Application to Transfer Denied May 5, 1976.

David Uthoff, St. Louis, for plaintiff-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for defendant-respondent.

PER CURIAM.

This is the third of three related cases which are being decided at this time. Movant, along with Charles Bonner and Horace W. Bonner, Jr., was charged by indictment, with two counts of murder in the first degree with respect to the deaths of two children, one count of rape and one count of assault with intent to kill with malice.

After the state had reduced the charge on the first two counts to murder in the second degree, the movant withdrew his plea of not guilty and entered a plea of guilty to all charges. The court followed the recommendation of the Circuit Attorney and sentenced movant to terms of 35 years on the two charges of murder in the second degree and on the charge of assault with intent to kill with malice, each sentence to run concurrently with the others, and to a term of 5 years on the charge of rape to be served consecutive to the 35 year sentences.

The sentencing court was disqualified. A full evidentiary hearing was then had before Hon. Daniel T. Tillman, who made extensive findings of fact and conclusions of law in denying the motion.

In this proceeding to set aside the plea of guilty we are governed by the procedure provided in Rule 27.26. Section (j) of that rule provides that our review is 'limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.' After sentence has been imposed upon a plea of guilty a movant may withdraw his plea and have the judgment of conviction set aside only to 'correct manifest injustice'. Rule 27.25. State v. Jackson, 514 S.W.2d 638, 641(1, 2) (Mo.App.1974).

Although movant's brief does not meet the required standards we have gleaned from his argument as best we can the issues which we believe he wishes us to consider. We do this for the reasons set out in Horace W. Bonner, Jr. v. State, 535 S.W.2d 289 (Mo.Ct. of App., St. Louis District). Accordingly, we shall undertake to determine whether the court erred in holding that movant had not carried the burden of proving that his plea was not voluntarily made with an understanding of the nature of the charges against him because (1) he was under the influence of heroin; (2) he was induced to plead guilty because his attorney informed him that if he did so he would serve no more than seven or eight years; (3) he was coerced into making the plea because the court threatened to impose four consecutive life sentences if the defendant did not enter a plea; (4) his choice of entering the plea as against trying the case was the result of ineffective assistance of counsel because counsel did not prepare a defense and failed to contact witnesses whose names were supplied by movant and did not proceed to get a change of venue because of pre-trial publicity; and (5) he was coerced to enter a plea of guilty because of adverse publicity by way of newspaper coverage and television appearances by the Circuit Attorney.

We first consider his contention that a responsive pleading was required to his Rule 27.26 motion, and that since none was filed, the facts pleaded in his motion are admitted. This same contention was made and ruled in the companion case of Horace W. Bonner, Jr. v. State, supra. A responsive pleading is not required by Rule 27.26 nor by Rule 55.01 nor by any Rule of Civil or Criminal Procedure.

Movant testified that this plea was not voluntarily made because he was 'on heroin . . . the day before (he) went to court;' that they had been getting heroin regularly in the jail and that he was 'high' when he went over to court on the day of his plea.

His sister spoke with him for about one-half hour before he decided to enter the plea. She testified that his speech was coherent. He seemed to know what he was talking about and so far as she could see his eyes were normal. She did not see anything physically wrong with him. Movant's trial counsel testified that there were no physical manifestations which would lead him to believe that his client was under the influence of drugs or alcohol. The trial judge testified that he would not have accepted the plea if he had thought that the movant was not in complete control of this faculties.

The credibility of the witnesses was for the trial court. The court was not bound to believe the testimony of movant. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). The court's finding that movant was not under the influence of narcotics was not erroneous.

Movant testified that his attorney told him that if he entered a plea of guilty 'with a sentence of thirty-five or forty years (he) wouldn't be doing more than seven or eight years in the penitentiary.' Movant's attorney denied that he had made such a statement. We cannot say that the finding of the trial court was erroneous on this issue. He was in the better position to determine which of the conflicting versions was more believable. Bradley v. State, 494 S.W.2d 45 (Mo.1973).

Movant argues that his plea of guilty was not voluntary because his trial attorney advised him that the trial judge had threatened to sentence him to four consecutive life sentences if he went to trial. He contends that this coerced the plea of guilty.

As background for this subject there was testimony to the effect that the attorney for this defendant, the attorney for his co-defendants and the Assistant Circuit Attorney had a conference in chambers with the trial judge. The Circuit Attorney's office was prepared to make a recommendation to the court. The attorneys gave the court a summary of the facts which would be presented to the jury. They then asked the court if he would accept a plea based upon a reduction of the murder charges to second degree and a recommendation that the sentences for each of the defendants be 35 years on each of the two counts of murder and the count of assault with intent to kill with malice and 5 years on the charge of rape with the sentences to run concurrently. The court advised that it would not accept the proposed recommendation.

The question of who would assess the punishment came up while in chambers. The court was of the opinion that the jury would be assessing the punishment because the defendant's prior felony convictions had not been pleaded. The court stated that because of the heinousness of the offenses, if the defendants were found guilty, he 'would feel inclined to run the sentences all consecutively.' Whatever the jury assessed he would have run consecutively.

Subsequently counsel for the parties asked the trial judge if upon pleas of guilty he would consider a recommendation by the Circuit Attorney that the three sentences of 35 years each run concurrently with the 5 year term for rape being consecutive. The court advised that he would accept such...