Delany v. State, 56500

• Decision Date: 13 December 1971
• Docket Number: No. 2,No. 56500,56500,2
• Citation: 475 S.W.2d 102
• Parties: Fred DELANY, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 102

475 S.W.2d 102

Fred DELANY, Movant-Appellant, v.STATE of Missouri, Respondent.

No. 56500.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 10, 1972.

P. Terence Crebs, St. Louis, for movant-appellant.

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

BARRETT, Commissioner.

In April 1965, Fred Delany and his brother, Robert Delany, were separately indicted for the murder of Peron Glass.On December 29, 1965, they separately entered pleas of guilty to murder in the second degree.Robert was sentenced to 20 years' imprisonment and is presently serving that sentence.Fred was sentenced to 25 years' imprisonment but on January 28, 1966, was placed on probation for five years.Subsequently his probation was revoked and five years after the entry of his plea of guilty, in March 1970, Fred, proceeding under Rules 27.25and27.26, V.A.M.R. filed a motion to withdraw his plea of guilty and to vacate the original judgment and sentence.After a hearing, the motion was denied and Fred has appealed.

While his motion and appeal are primarily concerned with the claims of ineffective counsel and involuntary plea of guilty his counsel has made a subsidiary point that in this 27.25--27.26 proceeding the court erred in finding that the original 'sentence and judgment below was in accord with and appropriate with the facts of the case.'The basis of this point is that in accepting the plea of guilty the court made the inquiry, 'What did this man do?'The prosecutor replied, 'One of the gentlemen, Robert Delany, actually pulled the trigger, and the other man, Fred Delany, handed him the gun from which the trigger was pulled.Both of them are charged with Murder Second.'The appellant points to this statement and now argues that he could not have been found guilty on this statement--that the prosecutor's statement 'does not support the crime charged.'In this connection he argues '(t)he fact that appellant may or may not have handed his brother a gun from which a shot was fired which killed a person is in no way sufficient to support a Second Degree Murder conviction.'Quite aside from the problem of whether Fred's guilt or innocence, he does not even now contend that he was not guilty and he does not challenge the revocation of his probation, was an issue in this proceeding or is an open question on this appeal, the prosecutor's statement was not the only matter before the court.In no uncertain terms the information charged that on May 1, 1965, Fred Delany'feloniously, wilfully, premeditatedly, on purpose and of his malice aforethought did make an assault upon one Peron Glass with a loaded shot gun and then and there, feloniously, wilfully, premeditatedly, on purpose and of his malice aforethought did discharge said shot gun at and upon the body of the said Peron Glass thereby feloniously inflicting a mortal wound upon the said Peron Glass from which said mortal wound Peron Glass did die on May 1, 1965.'To this indictment Fred Delany in the very proceeding now attacked entered a plea of guilty and if that plea is not invalid for some reason there is in addition to the prosecutor's statement his most solemn admission of guilt and certainly all the elements of murder in the second degree even though Fred's part in the murder was that of handing the lethal weapon to his brother.State v. Darling, 216 Mo. 450, 115 S.W. 1002;State v. Paxton, Mo., 453 S.W.2d 923.

The appellant's three points as to effective counsel and knowing, voluntary plea of guilty are interrelated.In part his counsel's argument here is a bit technical and factually relies solely on his client's testimony that he did not understand the charge or the proceedings and did not voluntarily enter a plea of guilty and that he did not have effective assistance of counsel.These in brief were the facts as the court did and could find them: From the testimony of Mr. John D. Chancellor, using a file of the Public Defender's office, the court could find that on October 4, 1965, he talked to Fred, then age 23 years, concerning this particular charge of murder in the second degree.He said, 'First, let me say this, he was a client as far as the Public Defender's Office was concerned or else we wouldn't have a file on him; not only a file, but a number of entries here that are not my entries, but entries from time to time and dated entries and previously referred to.So, as far as the Public Defender's Office was concerned at that time, at least up to the 29th day of December, 1965, he was a client of the Public Defender.'Mr. Noskay who was then the Public Defender said that on September 27(1965)he talked to Fred and on that date Fred did not have an attorney 'but thought he was going to get one.'Noskay, however, attended his arraignment on September 2, 1965 at which a plea of not guilty was entered and Mr....