Hess v. State, KCD

• Decision Date: 31 December 1975
• Docket Number: No. KCD,KCD
• Citation: Hess v. State, 531 S.W.2d 774 (Mo. App. 1975)
• Parties: Dennis E. HESS, Appellant, v. STATE of Missouri, Respondent. 27823.
• Court: Missouri Court of Appeals

Page 774

531 S.W.2d 774

Dennis E. HESS, Appellant, v. STATE of Missouri, Respondent.

No. KCD 27823.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1975.

Gerald Kiser, Public Defender, Liberty, for appellant.

John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and WASSERSTROM and SOMERVILLE, JJ.

TURNAGE, Presiding Judge.

Dennis Hess appeals the refusal of the court to set aside his pleas of guilty and the judgment entered thereon as requested by his motion filed under Rule 27.26.

Hess had entered a plea of guilty to two charges of feloniously and knowingly selling marijuana. These pleas followed an agreement between Hess, his attorney, and the prosecuting attorney by which a third charge of feloniously selling marijuana was dismissed.

The court held an evidentiary hearing on Hess's 27.26 motion. Hess based his claim of relief on the grounds his pleas were not voluntarily and knowingly entered because they were induced by promises that he would receive probation. He made the further assertion his counsel was ineffective because of his failure to respond to statements made by the court at the time probation was denied. He further asserts he is entitled to relief because the court denied him probation.

The evidence at the hearing on the 27.26 motion revealed that Hess was represented by Robert G. Duncan. Mr. Duncan testified he consulted with Hess a number of times about the three charges pending against him and about the pros and cons of Hess going to trial on all three charges of selling. Mr. Duncan stated there were not many pros and all of the relevant factors indicated the best hope for Hess was to enter a plea on two charges, have a third dismissed, and hope the judge would grant probation. Neither Mr. Duncan nor his partner Mr. Russell testified to any promise of probation they made to Hess.

Hess, in his testimony, did not state that any one had promised him probation, but stated he had been 'led to believe' he would receive probation.

The transcript of the proceedings in which Hess entered his pleas of guilty was admitted in evidence at the hearing on this motion. This transcript shows the trial judge who took the pleas of guilty fully complied with Rule 25.04. The record shows the judge covered Hess's physical and mental conditions, his comprehension of the consequences of the pleas, the range of punishment, his right to trial by jury, the availability of counsel, and the factual basis for the charges and his acknowledgement of his commission of these crimes. See Dill v. State, 525 S.W.2d 437 (Mo.App.1975). This record further shows the judge inquired of Hess if any threats, promises or inducements had been made to get him to enter pleas of guilty and Hess denied it. The court informed Hess the range of punishment was from five years to life and he acknowledged understanding this and again denied the existence of any promises or inducements for his pleas of guilty. The court further asked Hess specifically if...