Doepke v. State, 55982

• Decision Date: 12 April 1971
• Docket Number: No. 55982,No. 1,55982,1
• Citation: 465 S.W.2d 507
• Parties: Robert Eugene DOEPKE, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 507

465 S.W.2d 507

Robert Eugene DOEPKE, Appellant, v. STATE of Missouri, Respondent.

No. 55982.

Supreme Court of Missouri, Division No. 1.

April 12, 1971.

Richard H. Edwards, Clayton, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Commissioner.

Appeal from denial, after evidentiary hearing, of motions under Criminal Rules 27.25 and 27.26, V.A.M.R., to withdraw pleas of guilty and to vacate sentences and judgments. See State v. Harris, Mo., 382 S.W.2d 642, 643; State v. Blaylock, Mo., 394 S.W.2d 364, 365.

On March 8, 1968, Robert Eugene Doepke withdrew not guilty pleas and entered pleas of guilty to felony charges contained in six separate informations, and the court pronounced sentences as follows:

No. 287822, burglary and stealing, 'ten years';

No. 286266, burglary and stealing, 'ten years * * * to run concurrent with the sentence previously imposed * * * in Cause Number 287822';

No. 288745, operating motor vehicle without owner's consent, 'five years * * * to run concurrent with the previous sentence in Cause Number 287822';

No. 287824, stealing motor vehicle, 'five years * * * to run concurrent with Cause Number 287822';

No. 287823, carrying concealed weapon, 'five years * * * to run concurrent with Cause Number 287822';

No. 290088, burglary, second degree, 'five years * * * to run concurrent with the sentence imposed * * * in Cause Number 287822.'

Following pronouncement of these sentences the court ordered that defendant 'be placed on probation, to be remanded to the United States Marshall on the condition that he be prosecuted on a federal charge now pending; that if the federal charge is not prosecuted or if upon prosecution of the federal charge there is a finding of not guilty * * * or if upon a finding of guilty by the federal courts to the pending federal charge, if that sentence is less than ten years, then at the conclusion of that sentence the defendant * * * be returned to the Department of Criminal Correction, State of Missouri, to serve the sentence imposed by this Court.'

Contrary to the court's in-court pronouncements, the judgment entries in Nos 286266 and 287822 purport to sentence defendant to concurrent terms of ten years for burglary and ten years for stealing, to run concurrently with each other; and the record entries of the guilty pleas recite: 'Court orders execution of sentence stayed provided that defendant is sentenced to ten years on federal charge now pending against defendant. Defendant is remanded to custody of the federal authorities.'

On May 3, 1968, the court caused 'Judgment, Sentence and Revocation of Stay of Execution' to be entered in each of the six cases; and, on May 20, 1968, following his confinement in the penitentiary, defendant, through the public defender, filed a motion 'for leave to withdraw his former pleas of guilty in the above causes and to enter pleas of not guilty, on the grounds that such pleas were not voluntarily made.'

On July 25, 1968, defendant, through the public defender, withdrew his 'Motion for Leave to Withdraw Pleas of Guilty.'

On August 2, 1968, the public defender withdrew as counsel for defendant; Mr. Richard Edwards, present counsel, was appointed for defendant; and the court, by memorandum of record, noted that defendant's sentences were 'executed without a hearing,' and ordered a hearing for September 19, 1968, 'to determine whether or not the sentence(s) should now be executed.'

There was no hearing on September 19, 1968, and, on November 13, 1969, defendant filed his 'Alternative Motions to Set Aside Probation Revocation or to Grant Defendant a Hearing on said Revocation or to Set Aside Defendant's Former Plea(s) of Guilty.'

On February 6, 1970, an evidentiary hearing was accorded defendant on his alternative motions. In addition to the foregoing chronology and proceedings, the record also contains the proceedings surrounding entry of the pleas of guilty and testimony from defendant and his lawyers.

The record made March 8, 1968, shows that on each plea virtually the same colloquy occurred between court, counsel, and defendant, and the following is typical:

'THE COURT: You are Robert Eugene Doepke? MR. DOEPKE: Yes, sir.

'MR. KIMBRELL: At this time, Your Honor, the defendant requests leave to withdraw his former plea of not guilty to the charge of burglary second degree and stealing in cause number 287822 and to enter a plea of guilty to the charge.

'THE COURT: Before I accept his plea of guilty let me be sure he understands. You are Robert Eugene Doepke? MR. DOEPKE: Yes, sir. THE COURT: Your lawyer has just entered a plea of guilty in your behalf; by so doing, Mr. Doepke, you will not be given a trial and the only thing remaining to be done is to impose sentence upon you. MR. DOEPKE: Yes, sir.

'THE COURT: The law gives you a right to be tried by jury, and the jury may find you not guilty as well as guilty. MR. DOEPKE: Yes, sir. THE COURT: But by pleading guilty you will not be given a trial; do you understand that? MR. DOEPKE: Yes, sir.

'THE COURT: Have you had enough time to talk with your lawyer about entering this plea? MR. DOEPKE: Yes, sir. THE COURT: Have you had enough time to talk with a relative or friend if you wish? MR. DOEPKE: Yes, sir.

'THE COURT: The Court will accept your plea of guilty in Cause Number 287822. Does the prosecutor have a recommendation? MR. PEPKA: Yes, Your Honor. The State would recommend a sentence of ten years in the Missouri Department of Corrections. THE COURT: Does defense counsel wish to say anything before sentence is imposed? MR. KIMBRELL: No, Your Honor. THE COURT: Does the prosecutor wish to make any statement? MR. PEPKA: No, Your Honor. THE COURT: Mr Doepke, do you know any legal reason why I should not now pronounce sentence upon you? MR. DOEPKE: No, sir.

'THE COURT: Then it is the judgment of this Court that you be sentenced to the department of Criminal Corrections for a period of ten years. * * *

'MR. KIMBRELL: Your Honor, at this time the defendant requests the Court to place him on probation to the federal authorities on the condition that he receive a sentence from the federal authorities on a charge now pending in the United States District Court.

'THE COURT: I didn't realize what you were getting at; perhaps we'd better do it at the end. I think it would be clearer. MR. KIMBRELL: All right, Your Honor.'

The reference to probation came by way of request from Mr. Kimbrell: '* * * the defendant requests that in Cause Number 287822 and the other causes to which defendant has entered a plea of guilty to run concurrently with that charge, the Court to place the defendant on probation to federal authorities for prosecution on a charge now pending in the United States District Court on the condition that he receive a sentence on that charge.'

This request was recognized in the manner previously recited, to which the court added: 'If the federal authorities sentence you to ten years or more--whatever the charge is--then Missouri will have no further claim on you, for time that is. Do you understand? MR. DOEPKE: Yes, sir. THE COURT: All right; that will be the order of the Court.'

Robert Eugene Doepke acknowledged the entry of guilty pleas on March 8, 1968. 'Mr. Crandall (public defender) told me that I could plead guilty and receive a ten year sentence and be paroled or put on probation to federal charges that were pending * * *. And that through the federal court I could enter another plea and be sent to the narcotics hospital.' He was a narcotics addict, desirous of treatment in a federal institution, and this gave rise to the discussion and arrangement prior to pleading guilty. Upon being sentenced in the state court, he was taken to the federal marshal's office 'And finally, * * * I was taken before Judge Reagan; and the United States Attorney for that Court requested that the charges against me be withdrawn. * * * I tried to ask the Judge not to withdraw those charges; to let me enter a plea of guilty. * * * He said it was too late * * *. He would not permit me to enter a plea of guilty. * * * I was brought from the Federal Marshall's office to the St. Louis County Jail * * * until I was taken to the Department of Corrections in Jefferson City.' In deciding to plead guilty, he relied on the representations and arrangements discussed with his attorney. 'When I entered these pleas of guilty, before I did, I had a five minute discussion with Mr. Kimbrell * * * and I asked my attorney, that if I did not receive the sentence from the federal court as was intended at that time, that if I was brought back here and my probation was violated, and would the Judge * * * allow me to withdraw my plea of guilty.

'Mr. Kimbrell told me * * * yes, I could withdraw my plea of guilty and that I would be brought back before this Court before any action was taken, and before I would be sent to the penitentiary. I did not plead guilty with the intention of having to serve this ten year sentence. I pled guilty with the intention of receiving a probation from this court to the federal court in St. Louis, Missouri; and that from the federal court, whatever sentence I would receive, I would also receive through that sentence care for narcotics addiction. Now that was the understanding that I had with my attorney before I walked in this courtroom. I don't believe my attorney told me--that is Mr. Kimbrell--before I entered the please, I don't believe he told me that I had to receive the full ten year sentence from the federal court.'

William Crandall, a public defender, also counselled with defendant. Defendant talked with him about 'Receiving narcotic treatment through the Court. Mr. Crandall told me that he didn't believe, or was not aware that this Court could send me to a narcotics hospital * * *. So he suggested that I enter a plea of guilty to the charges pending here * * * and be put on probation...