Donaldson v. State

• Decision Date: 03 April 1973
• Docket Number: No. 9295,9295
• Citation: 493 S.W.2d 677
• Parties: Charles M. DONALDSON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 677

493 S.W.2d 677

Charles M. DONALDSON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 9295.

Missouri Court of Appeals, Springfield District.

April 3, 1973.

Roger K. Fisher, Joplin, for movant-appellant.

John C. Danforth, Atty. Gen., Charles B. Blackmar, sp. Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

This is an appeal from the order of the Jasper County Circuit Court overruling appelant's second motion under Rule 27.26, V.A.M.R., seeking to vacate a 99-year sentence for rape entered in 1947 on a plea of guilty. We affirm.

Appellant's first motion to vacate judgment and sentence alleged an involuntary plea because of promises by his lawyer that the sentence would be 15 years, mental incompetency at the time of the plea, and the failure of the trial court to comply with Rule 25.04 before accepting the plea. Following an evidentiary hearing the trial court denied appellant relief and this order was affirmed by the Missouri Supreme Court on March 13, 1972. Donaldson v. State, 477 S.W.2d 84 (Mo.1972).

On April 25, 1972, appellant filed his present motion, pro se, to vacate the 1947 judgment and sentence. As grounds, he alleged the trial court was without jurisdiction to impose the sentence because the forcible rape statute (§ 559.260, RSMo 1969, V.A.M.S.) requires a jury to assess the punishment on a plea of guilty to the charges; further, that he had ineffective assistance of counsel and that he was unconstitutionally sentenced twice.

Rule 27.26(d) provides: 'The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.' (Emphasis ours.)

As was stated in Newman v. State, 481 S.W.2d 3, 5 (Mo.1972). 'The purpose of this Rule is to prevent successive motions on grounds known at the time of filing a first motion although such grounds were not raised in the first motion. It is intended to apply whether or not the first motion was decided adversely to the petitioner, withdrawn or dismissed, because Rule 27.26(c) says: 'The motion shall include every ground known to the prisoner.' See Caffey v. State, Mo.Sup., 467 S.W.2d 857, 859.'

In an effort to avoid the limiting language of Rule 27.26(c), (d), appellant alleged in the present motion that he was not aware of the present grounds when he filed his first motion to vacate and that it was as a result of the benefit of conferences with law students, and research by the latter, that he became aware of his latest allegations. He states that whether or not the trial court conducts a hearing is 'irrelevant' but 'desires a finding of facts and conclusions of law on these allegations.'

As above noted, Rule 27.26 permits a second application for relief but subparagraph (d) casts a burden on appellant to establish that any new ground could not have been raised in his prior motion. Warren v. State, 473 S.W.2d 427 (Mo.1971); Newman v. State, supra; Veneri v. State, 474 S.W.2d 833 (Mo.1971). Rule 27.26(i) requires the trial court to make findings of fact and conclusions of law on all issues presented and where a second motion is filed the trial court should make findings as to whether or not the grounds presented in a second motion had previously been presented and whether the exception provided in subparagraph (d) applies. An evidentiary hearing on this preliminary question is not required and the trial court can rule this point on the pleadings and the records of the court, or it may, in the court's discretion, order an evidentiary hearing. Veneri v. State, supra, at 841.

In ruling appellant's present motion the trial court determined that an evidentiary hearing was not required because all of the matters alleged in the second motion had been previously ruled adversely to the appellant in his initial motion and overruled the instant motion. In compliance with Rule 27.26(i), the court prepared and filed a memorandum opinion containing the following findings and conclusions: '. . . Par. 8(a) with the reasons set out in par. 9(a) of defendant's motion is ruled against movant for the reasons that § 546.440 and Sup.Ct.Rule 27.03, provide for sentence by the court in the event the jury cannot agree upon punishment and there is no Statute or rule providing for a jury in the event of a plea of guilty by a defendant.

'Par. 8(b) with reasons set out in par. 9(b) are ruled against movant for the reason that the movant raised the question of ineffective assistance of counsel in his previous motion and said motion was denied and the ruling affirmed upon appeal.

'Par. 8(c) with reasons set out in par. 9(c) are ruled against movant for the following reasons:

a. Same was not raised in previous motion.

b. The Court specifically finds the facts to be as follows:

'Up until the final amount of assessing punishment the court fully intended to assess the death penalty but was unable to bring himself to do so. The Court announced the penalty of 99 years whereupon there was some question by the attorneys involved as to whether or not such penalty could be assessed and the court entered the life sentence. The court then obtained the statute and determined that 99 years could be assessed, recalled the defendant and assessed the punishment first announced. This punishment is within the statutory penalty and was justified by the facts stated to the court.

'Any other matter not specifically ruled is hereby ruled against defendant (sic).'

We are of the opinion that the trial court properly overruled appellant's second motion to vacate his sentence. The present grounds asserted for relief were either alleged in the first Rule 27.26 proceedings, developed in the evidentiary hearing in support of an alleged ground, or, could have been raised in the earlier motion. Although the transcript of the earlier proceeding is not before us we have the benefit of the opinion in Donaldson v. State, supra, and appellant's 'statement of facts' (citing the evidentiary hearing transcript) in his pro se brief filed herein. ¹ Appellant testified at length at the evidentiary hearing concerning alleged derelictions of his former attorney (deceased). His testimony also covered the events at which time he received the 99-year sentence, rather than a life sentence.

Appellants now-asserted ground that the trial judge could not lawfully assess his punishment is without merit. § 546.440, RSMo 1969, V.A.M.S., provides '* * * (A)nd in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.' Rule 27.03 states '. . . (A)nd in all cases of judgment by confession, or upon plea of guilty . . . the court shall assess and declare the punishment . . .' Appellant contends that § 559.260 ² which provides that the penalty for a conviction of forcible rape is solely within the discretion of the jury and prevents the assessment of punishment by a judge upon a plea of guilty. Such argument overlooks the specific provisions of § 546.440 and Rule 27.03 and the decisions of the Missouri Supreme Court in Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217 (1889), and State v. Williams, 320 Mo. 296, 6 S.W.2d 915 (1928). The latter case squarely ruled the constitutional claim now made by appellant and in disposing of the identical contention the court said (6 S.W.2d 919): 'Defendant contends that the statutes are conflicting and repugnant and that by reason of the context section 3247 (now § 559.260) takes precedence over section 4048 (now § 546.440). The contention is tantamount to this, that, in all cases embraced within section 3247, even though the defendnat pleads guilty, the matter of punishment be submitted to and fixed by the jury in its discretion. It will be noted, however, that section 3247 uses the words 'convicted of rape.' In the sense in which it is used in section 3247, the word 'convicted' assumes that a trial was had to a jury, wherein they returned a verdict of guilty. The word 'convicted' is commonly used merely to signify the findings of the jury that the accused is guilty. This is the well-settled meaning of the term as ordinarily used in constitutional and statutory provisions. 13 C.J. 903--905. It is evident, therefore, that a well-defined distinction obtains between sections 3247 and 4048 in that regard and that no conflict exists. If tried to a jury, the jury fixes the punishment in their discretion, if defendant is convicted by the verdict. If defendant pleads guilty--that is, assents to a judgment by confession--it is the duty of ...