Griffith v. State, 9445

• Decision Date: 10 January 1974
• Docket Number: No. 9445,9445
• Parties: Bobby T. GRIFFITH, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 324

504 S.W.2d 324

Bobby T. GRIFFITH, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 9445.

Missouri Court of Appeals, Springfield District.

Jan. 10, 1974.

Motions for Rehearing to Transfer to Court En Banc or

Transfer to Supreme

Court were Denied Jan. 18, 1974.

Application to Transfer Denied Feb. 11, 1974.

Joe Welborn, Bloomfield, and Bobby T. Griffith, pro se.

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

TITUS, Judge.

Bobby Tyrone Griffith appeals from the judgment overruling his Rule 27.26, V.A.M.R. motion to vacate a 30-year sentence imposed upon a plea of guilty to sodomy. § 563.230 RSMo 1969, V. A.M.S. ¹ The charged act is said to have been one of three committed by movant while he was incarcertated in the Stoddard County jail awaiting trial on two forgery counts. At the extensive evidentiary hearing held on the Rule 27.26 motion, movant was represented by able court-appointed counsel who has filed a brief and requested to orally argue movant's cause upon appeal. However, movant has filed what he terms a pro se brief, and albeit the two briefs coincide in most respects, movant declares that counsel's writing 'is not the brief of appellant. It is wrong completely. ² Please submit the case for consideration without oral argument on the Pro Se Brief.' We undertake to accommodate these directions. The pro se brief contains eight points, many overlapping, and all written heedless of the requirements of Rule 84.04(d), applicable alike to both civil and criminal appeals. Rule 28.18; State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971). Nevertheless, these will be noted, though not necessarily in the order of their appearance in the brief.

One point relief on is that the trial court erred in failing to find that § 563.230 (see note 1) was constitutionally void because it is 'vague, uncertain, indefinite and did not charge (movant) with any offense.' To this movant cites 39 cases, statutes and constitutional provisions. He also lists 13 sociosexual articles intended, we assume, to induce legitimization of sodomitical practices between consenting adults. ³ As to the latter, it is not a proper function for any court to judicially repeal laws on purely sociological considerations--movant would do better to address the cited articles to the General Assembly for it to determine if modern mores require the alteration or expunction of sodomy statutes. Movant's urgings that § 563.230 is constitutionally void were throughly explored and rejected in State v. Crawford, 478 S.W.2d 314 (Mo.1972). This court's subordinate position in the appellate judicial structure does not endow it with either the authority or temerity to rule contra to 'the highest court in the state' (Mo. Const. Art. V, § 20, V.A.M.S.), and we would be the last to condemn a trial court for following suit.

Five of the 'points' contained in movant's pro se brief are abstract declarations that the trial court erred in not finding (1) 'that the plea of guilty was involuntary; that appellant did not understandingly plead thereto; nor intelligently waive his constitutional rights,' (2) 'that appellant had been mislead (sic) by his attorney into believing he would receive five years and his other charges bropped for his plea,' (3) 'that a 'promise' had been made appellant,' (4) 'that appellant (had) sustained his burden of proof,' and (5) 'that appellant had been denied effective assistance of counsel for his defense.' An additional conclusion is recited as a sixth 'point,' i.e., 'The record demonstrates a manifest injustice which could be ruled upon by this court, or remand for re-sentencing because the court considered information that was not true in deciding to impose a sentence of thirty years upon appellant.' None of these abstractions, contrary to Rule 84.04(d), undertake to state 'wherein and why' the alleged failures of the trial court constituted error. We are not informed in the points 'why' the plea was involuntary, 'why' appellant did not understandingly plead or intelligently waive his constitutional rights, or what constitutional rights appellant waived. Moreover, we do not known from the 'points' what 'promise' was supposedly made to appellant, or 'why' it is supposed appellant was misled by his attorney, or 'why' it is contended he did not sustain his burden of proof, or 'wherein' appellant was denied effective assistance of counsel. Neither are we admonished by the 'points' what particular untrue information was allegedly considered by the sentencing court in arriving at a determination to sentence appellant to thirty years. We have no duty to seine the argument portion of an appellant's brief or the transcript on appeal to ascertain the whereins and whys of claimed errors presented in the points relied on as mere conclusions (State v. Dennison, 428 S.W.2d 573, 579(8) (Mo.1968)) and would be justified in terminating our consideration of these points because of the nonobservance of Rule 84.04(d). We will, however, consider them ad finem.

As to the alleged 'promise' and movant's complaint that his attorney misled him into believing he would 'receive five years and his other charges dropped for his plea," we note that the other charges were dropped and that before any action was taken on the plea, the court interrogated movant as follows: 'Q. Has anyone told you or promised or suggested to you that you would receive a lighter sentence or probation or parole or any other favors to get you to say you are guilty of this crime? A. No, sir. . . . Q. Has any promises been made to you by anyone? A. No, sir. Q. Do you understand that any agreements or proposals between yourself, your attorney, and the Prosecuting Attorney are not binding on the Court, and it's up to me to determine what to do in your case? A. Yes, sir. . . . Q. Do you have any questions to ask of me or statements to make to me before I act upon your plea of guilty? A. No, sir. . . . Q. You are not pleading guilty under any duress, coercion, or compulsion, or because of any promises, inducements, or representations, is that correct? A. Yes, sir.'

Contrary to the foregoing, movant testified at the hearing on his Rule 27.26 motion that a week before he changed his plea from 'not guilty' to 'guilty,' his appointed counsel told him that William Vandiver, who was charged with the same crimes as movant, had 'pleaded guilty for five years and I told him I'd plead guilty for five years and my other charges dropped.' According to movant, his lawyer then 'went out (of the jury room) and he came back and said, 'All right. We'll plead guilty for five years and the other charges dropped. " The attorney did not advise movant 'as to (whom) he discussed this with' and movant did not discuss the length of any sentence with the sheriff, prosecuting attorney, or any other officers--'Q. The only person you talked to about a sentence was your own attorney . . .? A. Yes.' Movant's mother and grandmother testified that before movant was sentenced he told him that his lawyer said 'he wouldn't get over five years.' The parties agreed that Libbey Brown, movant's half-sister, would cumulatively testify as did his mother and grandmother. Movant's Exhibits C and D at the evidentiary hearing on his motion consisted, inter alia, of interrogatories propounded to the lawyer appointed to represent him on the sodomy charges and the attorney's answers thereto. One interrogatory inquired 'whether the prosecution made any deals for a plea of guilty'; the answer was 'No.'

William Vandiver, testifying at the motion hearing, asserted 'I was in . . . the outer office first, then they took (movant) in and he plead not guilty and come back out and they called me in and I plead guilty and went back out there and (the lawyer) was telling (movant) that I'd pled guilty for five years and that he could plead guilty for five years also.' However, opposed to what movant and Vandiver said was represented by counsel, it is the undisputed fact that Vandiver did not plead guilty for five years; Vandiver was sentenced to 30 years in movant's presence 50 days after movant had pled guilty and immediately before movant was called to the bench for allocution and sentencing following completion of a presentence investigation. Ignoring the unlikely situation of movant being unaware that Vandiver had not been sentenced at the time of the purported representation and assuming, arguendo, that counsel's statement qualified as a 'promise,' whether such a promise was in fact made is not consistent with movant's several assurances to the sentencing court that he was not pleading guilty 'because of any promises, inducements, or representations,' is contradicted by the lawyer's interrogatory answer that no 'deals' had been made, and is confused by movant's assertion the promissory conversation occurred in the jury room, whereas Vandiver recounted that it transpired in the outer office. Movant's argument is predicated entirely upon the assumption that a promise had actually been made. But the promise did not become an established fact simply because movant and Vandiver so testified or because movant's relatives related hearsay testimony as to what movant had reported to them. The trier of the fact had the right to, and expressly did, reject the testimony anent a promise being made that if movant pleaded guilty he would receive a sentence of five years. Bradley v. State, 494 S.W.2d 45, 47--48(2) (Mo.1973).

The transcript of the proceeding had by the court in conjunction with the plea of guilty was entered as an exhibit in the hearing held on the Rule 27.26 motion. This exhibit attests to the court's full and complete compliance with Rule 25.04. Movant (then defendant) was personally interrogated by the court in a fashion exceeding the recommended procedure outlined in Flood v. State, 476 S.W.2d 529, 535--536 (Mo.1972). At the evidentiary hearing on the motion, movant was...