Holloway v. State, WD

• Decision Date: 23 March 1999
• Docket Number: No. WD,WD
• Citation: 989 S.W.2d 216
• Parties: Mike T. HOLLOWAY, Appellant, v. STATE of Missouri, Respondent. 55509.
• Court: Missouri Court of Appeals

Page 216

989 S.W.2d 216

Mike T. HOLLOWAY, Appellant, v. STATE of Missouri, Respondent.

No. WD 55509.

Missouri Court of Appeals,

Western District.

March 23, 1999.

Craig Johnston, State Public Defender Office, Columbia, for appellant.

Meghan Stephens, Attorney General Office, Jefferson City, for respondent.

FOREST W. HANNA, Presiding Judge

The defendant, Mike Holloway, was charged with the class A felony of attempted escape from confinement pursuant to § 575.210, RSMo 1994. The state amended the information by interlineation to the class D felony of attempted escape from confinement. Pursuant to a negotiated plea agreement in the underlying criminal case, the defendant pleaded guilty to the amended charge. He was sentenced to a term of five years imprisonment to be served concurrently with other sentences he was presently serving. Defendant's Rule 24.035 motion to vacate his conviction was denied without an evidentiary hearing, and this appeal followed.

The defendant contends on appeal that the plea court was without jurisdiction to accept his plea because there was no factual basis established for his plea, and the amended information failed to charge a crime. He also complains that the motion court failed to enter specific findings of fact.

At the plea hearing on February 10, 1997, the defendant testified that he understood the charges against him and that he was pleading guilty because he was guilty of the crime with which he was charged. He told the court that he understood that the charge had been reduced from a class A felony of attempted escape to the class D felony. He understood that the range of punishment for this crime charged was a maximum of five years in prison, or one year in the county jail, or a $5,000 fine, or a combination of a fine and jail. ¹ The defendant stated that he had enough time to discuss the case with his attorney, that he was satisfied with his attorney's services, and that his sentence was what he expected under the plea bargain. Furthermore, the defendant filed with the court a written Petition to Enter Plea of Guilty.

The court asked the defendant whether there was a plea agreement. He answered in the affirmative and explained that the state would drop the charge from a class A felony to a class D felony, and the state would not file assault charges against him. The prosecutor agreed, and added that the defendant would receive a five-year sentence to be imposed concurrently with the time currently serving. After sentencing, the defendant told the court that he got what he bargained for.

Our standard of review of a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court were clearly erroneous. Ennis v. State, 887 S.W.2d 771, 772 (Mo.App.1994)(citing Rule 24.035(j) and Trehan v. State, 872 S.W.2d 156, 158 (Mo.App.1994)). Although an evidentiary hearing was denied, such a hearing is not always necessary to determine the facts developed at the plea hearing and whether those facts were sufficient to show a factual basis, as required by Rule 24.02(e), of the crime charged. Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). The matter may be resolved by a study of the plea hearing. Id.

The defendant's primary challenge is directed at the lack of specificity of the factual statement detailing the crime of attempt to escape from confinement. The crime of attempt to escape from confinement requires proof that the defendant was in confinement for a crime, and that he attempted to free himself of the limits of that confinement. State v. Davidson, 947 S.W.2d 87, 89 (Mo.App.1981). The term "attempt" carries both a common law and a statutory meaning. State v. Reyes, 862 S.W.2d 377, 380 (Mo.App.1993). The inchoate offense of attempt is defined in the Criminal Code as any act which is a substantial step toward the commission of an offense, done with the purpose of committing the offense. § 564.011, RSMo 1994. It is more comprehensive than the common law offense of attempt and is classified as a class C felony with a lesser punishment. The definition of attempt to escape from confinement, the crime that the defendant was charged with, requires conduct that "nearly approached the consummation of the offense." As such, the defendant argues that his plea was "involuntary and unintelligent" in that it lacked any details explaining his "attempt" to escape. The defendant maintains that the plea court could not determine whether his conduct nearly approached consummation of the offense, or whether it fell within the broader conduct of a substantial step toward the commission of the offense. ²

Rule 24.02(e) provides that "the court shall not enter a judgment of guilty unless it determines that there is a factual basis for the plea." If the facts do not establish the offense, the court must reject the guilty plea. Ennis, 887 S.W.2d at 773. Rule 24.02(e) is designed to insure that the defendant enters a plea of guilty intelligently and voluntarily. Id. at 775; Sales v. State, 700 S.W.2d 131, 133 (Mo.App.1985). By pleading guilty, a defendant waives all errors except those affecting the voluntariness or understanding with which the plea is made. White v. State, 957 S.W.2d 805, 807 (Mo.App.1997). As we have repeatedly stated, a reviewing court's focus is on whether the plea was made intelligently and voluntarily, not whether a particular ritual is followed or every detail explained. See Cross v. State, 928 S.W.2d 418, 419 (Mo.App.1996); Rolfes v. State, 574 S.W.2d 948, 950 (Mo.App.1978); Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975).

Certain crimes of attempt, like attempt to escape from confinement, are subsumed in the body of the statute governing the underlying offense, i.e. escape from confinement. Reyes, 862 S.W.2d at 379. The common law definition of attempt applies to this special category of attempt crimes, unless the prosecutor explicitly opts to charge the defendant under the general attempt statute. Id. at 380. The common law definition of the term attempt would apply. Reyes, 862 S.W.2d at 386. Thus, the defendant is guilty of the class D felony of attempt to escape, pursuant to § 575.210, if his conduct "nearly approached the consummation" of the escape.

Our inquiry here, as in all Rule 24.035 motions, is whether the record warrants the conclusion that the defendant knowingly, voluntarily and intelligently entered his guilty plea. "[I]t is not necessary that the movant admit to, or even believe, the veracity of the elements of the charge against him in order for his guilty plea to be valid ... all that is necessary is that the plea be knowing and voluntary." Bird v. State, 657 S.W.2d 315, 316 (Mo.App.1983)(citing Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Bounds v. State, 556 S.W.2d 497 (Mo.App.1977)).

The defendant relies primarily upon Hoskin v. State, for the proposition that "a mere reading of the indictment and amended information" at the plea hearing does not establish a sufficient factual basis. 863 S.W.2d 637, 640 (Mo.App.1993). In Hoskin, the defendant was charged and plead guilty to kidnapping, rape, attempted sodomy, sexual abuse in the first degree, stealing a motor vehicle and three counts of armed criminal action. Id. at 638. At the plea hearing, the court read the charges to the defendant in language that was substantially the same to the language contained in the information. Id. at 639. The court then asked the defendant whether the charges, which had been read to him, were correct. Id. The defendant answered in the affirmative. Id. The defendant was not asked to explain or describe any of his actions that precipitated the charged offenses. Id.

The Hoskin court determined that the plea court had failed to establish a factual basis for the pleas of attempted sodomy, sexual abuse, and the accompanying armed criminal action charges. Id. The court reasoned that the "the term deviate sexual intercourse is an unknown," and it is unclear whether the defendant understood the charges against him. Id. Thus, a description of the nature of the sexual contact which constituted the alleged crimes was needed. Id. at 639-40. Nevertheless, the court held that the pleas to the crimes of kidnapping, rape, and motor vehicle theft had an adequate factual basis because, the court observed, each had allegations which were "simple, and specific." Id. at 640. The allegations of those crimes were sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing, and the commission of which constituted the crimes charged. Id.

In Ennis v. State, the court determined, on the one hand, that the defendant's admission at the plea hearing that he ran out of the police department after being arrested provided a sufficient factual basis for his plea of escape from custody. 887 S.W.2d 771, 775 (Mo.App.1994). On the other hand, the court also found that the defendant's admission to two courts of sodomy with the victims lacked a sufficient factual basis because the meaning of the term "deviate sexual intercourse" was not readily apparent without the statutory definition. Id. Apparently, the defendant waived the reading of the amended information that charged him with deviate sexual intercourse; therefore, the only evidence supporting a factual basis was his testimony that he had "sexual intercourse" with his two grandchildren. ³ Id. at 774.

Unlike the evidence in Hoskin and Ennis, the record in the instant case reflects that the defendant understood the charges against him and the facts of the crime. The facts, in addition to those mentioned supra, which show that the defendant understood the charges are as follows.

The court addressed the defendant at the plea hearing:

Q. Mr. Holloway, what did you do that got you charged with this crime?

A. Being held in Nodaway County jail and - from Worth County,...