Drew v. State

• Decision Date: 10 February 1969
• Docket Number: No. 54002,No. 2,54002,2
• Citation: 436 S.W.2d 727
• Parties: Mack Lewis DREW, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 727

436 S.W.2d 727

Mack Lewis DREW, Appellant, v. STATE of Missouri, Respondent.

No. 54002.

Supreme Court of Missouri, Division No. 2.

Feb. 10, 1969.

Dean S. Johnston, Joplin, for movant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Frank E. Vigus, Special Asst. Atty. Gen., St. Louis, for respondent.

DONNELLY, Judge.

An information filed in the Curcuit Court of Jasper County, Missouri, charged defendant, Mack Lewis Drew, with murder in the first degree. On November 4, 1965, the prosecuting attorney amended the information to charge murder in the second degree, and defendant appeared with his employed attorney, Vernie Crandall, entered a plea of guilty to the charge, and was sentenced to imprisonment for twelve years.

On December 8, 1967, defendant filed in the Circuit Court of Jasper County, Missouri, his Motion to Vacate Judgment under S.Ct. Rule 27.26, V.A.M.R. An evidentiary hearing was held, with defendant present, on June 18, 1968. The Motion to Vacate Judgment was denied. Defendant appealed.

Defendant first alleges in his Motion that 'he was denied due process and the equal protection of law for the reason he did not voluntarily enter a plea of guilty,' and that, under the circumstances, the trial court 'had to take for granted' his plea of guilty was voluntarily made.

The rules of law, applicable to these contentions, are now well-established:

(1) S.Ct. Rule 25.04, V.A.M.R., provides that the trial court '* * * shall not accept (a plea of guilty) without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * *'

(2) The trial court must make this determination at the time the plea is taken. State v. Smith, Mo.Sup., 421 S.W.2d 501, 504. The trial court is not relieved of this duty where defendant is represented by counsel of his choice. State v. Arnold, Mo.Sup., 419 S.W.2d 59, 62.

(3) A plea of guilty is not 'made voluntarily' if the defendant is misled or is 'induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded * * *.' State v. Cochran, 332 Mo. 742, 745, 60 S.W.2d 1, 2; State v. Parker, Mo.Sup., 413 S.W.2d 489, 494.

(4) S.Ct. Rule 27.25, V.A.M.R., provides that 'a motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.'

(5) A defendant is not entitled as a matter of right to withdraw his plea of guilty after sentence. A plea of guilty may be withdrawn only 'to correct manifest injustice.' State v. Parker, Mo.Sup., 413 S.W.2d 489, 494.

(6) S.Ct. Rule 27.26, V.A.M.R., as amended and effective September 1, 1967, provides that a prisoner in custody under sentence may file a motion to vacate the sentence on the ground that the plea of guilty which preceded the sentence was not voluntarily made. An application, made after sentence, to withdraw a plea of guilty, is an attack on the validity of that sentence and will be treated as a proceeding to vacate under Rule 27.26. State v. Arnold, Mo.Sup., 419 S.W.2d 59, 60; State v. Mountjoy, Mo.Sup., 420 S.W.2d 316, 323. It should be submitted on a form substantially in compliance with the form appended to Rule 27.26.

(7) The transcript of the proceedings in the trial court at the time the plea of guilty is accepted should demonstrate a substantial compliance with the requirements of Rule 25.04. It can, and should, represent the best evidence available to show that a defendant's plea of guilty was made voluntarily with understanding of the nature of the charge.

(8) A defendant may, after sentence, file a motion to vacate sentence under Rule 27.26, and, if the transcript of the original proceedings does not demonstrate a substantial compliance with the requirements of Rule 25.04, shall be given an evidentiary hearing if issues of fact are raised in the motion. Rule 27.26(e). 'If it be found on the hearing on the motion to vacate the sentence, notwithstanding the insufficiency of the record at the time the plea was accepted, that the plea of guilty was in fact voluntary and was made with an understanding of the nature of the charge, then no manifest injustice could have resulted.' State v. Sayre, Mo.Sup., 420 S.W.2d 303, 305.

(9) A defendant may, after sentence, file a motion to vacate sentence under Rule 27.26, and, even though the transcript of the original proceedings does demonstrate a substantial compliance with the requirements of Rule 25.04, shall be given an evidentiary hearing if issues of fact are raised in the motion. Rule 27.26(e); State v. Garner, Mo.Sup., 412 S.W.2d 155. In this situation, if it be found on all the evidence 'that the plea of guilty was in fact voluntary and was made with an understanding of the nature of the charge, then no manifest injustice could have resulted.'

(10) In either situation, the defendant 'has the burden of establishing his grounds for relief by a preponderance of the evidence.' Rule 27.26(f); State v. Mountjoy, Mo.Sup., 420 S.W.2d 316, 323.

(11) 'In the determination of these fact issues the trial court is necessarily clothed with that discretion exercised by a trial court when acting as the trier of facts, and on appeal the review is limited to a 'determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.' Rule 27.26(j).' State v. Mountjoy, Mo.Sup., 420 S.W.2d 316, 323; Crosswhite v. State, Mo.Sup., 426 S.W.2d 67, 70, 71.

(12) It is essential that the trial court make adequate findings of fact and conclusions of law. Rule 27.26(i); Gerberding v. State, Mo.Sup., 433 S.W.2d 820, 824.

The transcript of the proceedings on November 4, 1965, shows the following:

'THE COURT: This is case Number 11419, State of Missouri versus Mack Lewis Drew. Let the record show that the Prosecutor, George Baldridge is present and the defendant--you are Mack Lewis Drew?

'THE DEFENDANT: Yes, Your Honor.

'THE COURT: The defendant is present and the firm of Frieze and Crandall--you represent him?

'MR. CRANDALL: That's correct, yes, sir.

'THE COURT: They are your attorneys, aren't they, Mr. Drew?

'THE DEFENDANT: Yes, sir.

'THE COURT: All right. Do you want the information read?

'MR. CRANDALL: No sir, I think--

'MR. BALDRIDGE: Your Honor, at this time the State requests leave to file an amended information and make the charge second degree murder and let the record show--.

'THE COURT: Do you want to amend this information?

'MR. BALDRIDGE: We can file this information, Your Honor, if that is satisfactory, to second degree, to save filing the amendment.

'THE COURT: I show 'By leave of Court, State amends information to charge second degree murder.'

'MR. CRANDALL: Yes, Your Honor, as to that charge we will waive formal arraignment and enter a plea of guilty.

'THE COURT: Mr. Drew, you understand fully--

'THE DEFENDANT: Yes, sir.

'THE COURT:--what you are doing in this case and you have discussed it fully with your attorneys?

'THE DEFENDANT: I have, Your Honor.

'THE COURT: And as I understand, this is not your first experience in Court. You are familiar with the procedure in Court, aren't you?

'THE DEFENDANT: I am, Your Honor.

'THE COURT: And you know absolutely what you're doing?

'THE DEFENDANT: Yes.

'MR. CRANDALL: Your Honor, I want to say this for the record, that I have spent a great deal of time, both Senator Frieze and myself, primarily I have done so, time with this young man and with his parents and have advised with them and counseled with them at long length concerning the move that should be made in this case, and it's with all that background of discussion that we have entered this plea.

'THE COURT: Defendant waives formal arraignment and enters plea of guilty to murder in the second degree. Do you want to make a statement, Mr. Baldridge?'

The prosecuting attorney advised the court as to the facts of the case and recomended a sentence of twelve years. Mr. Crandall then made a statement to the Court and requested the Court to accept the recommendation of the prosecuting attorney. The Court then ordered defendant 'committed to the custody of the Director of the Department of Corrections at Jefferson City for a term of twelve years.'

The transcript of the proceedings in the trial court on November 4, 1965, does not fully demonstrate a substantial compliance with Rule 25.04. Therefore, we must examine the transcript of the evidence adduced at the evidentiary hearing held June 18, 1968, on the Motion to Vacate Judgment. State v. Sayre, supra; State v. Mountjoy, supra.

Defendant testified at the hearing on June 18, 1968, that he was sentenced Novemer 4, 1965; that he was represented by Mr. Vernie Crandall, who was hired to defend him; that he discussed the disposition of his case with Mr. Crandall, who encouraged him to plead guilty; that Mr. Crandall advised him that, if he entered a plea of guilty, the prosecuting attorney would reduce the charge from first degree murder to second degree murder; that Mr. Crandall advised him of the extent of punishment the prosecuting attorney would recommend; that Mr. Crandall advised him that the only defense he would have would be self defense; that in order to assert that defense he 'would have to take the stand,' and that his past record would be brought out in court.

Defendant further testified on direct examination as follows:

'Q. Now, tell the Court what happened when you came into the Courtroom.

'A. I don't remember all that happened. We came in and Mr. Baldridge asked the charge be reduced to Second Degree.

'Q. To Second Degree?

'A. Yes, sir. And, Mr. Crandall waived formal arraignment, or something, and entered a plea of guilty and the Judge asked me if I understood what I--or knew absolutely what I was doing, or words of those effects which I answered, 'Yes...