Hoskin v. State, 63303

• Decision Date: 28 September 1993
• Docket Number: No. 63303,63303
• Citation: 863 S.W.2d 637
• Parties: Larry HOSKIN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 637

863 S.W.2d 637

Larry HOSKIN, Appellant, v. STATE of Missouri, Respondent.

No. 63303.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 28, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 27, 1993.

Dave Hemingway, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David B. Cosgrove, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Movant was indicted in May, 1991 for rape and armed criminal action. [Trial court Cause No. 91-CR-4838]. He was charged by a March, 1992 information in lieu of indictment as a prior offender with kidnapping, rape, attempted sodomy, sexual abuse first degree, stealing a motor vehicle and three counts of armed criminal action associated with the kidnapping, rape, and sexual abuse first degree counts. [Trial court Cause No. 92CR-543]. The pleas for both causes were taken in one proceeding. Pursuant to a plea agreement the state recommended concurrent terms of twenty-five years on seven of the charges, fifteen years on one charge and seven years on two charges. Movant raises two points on appeal. The first complains of ineffective assistance of counsel for failure to investigate alleged alibi witnesses. The second complains the plea court failed to establish a factual basis for the crimes charged at the plea hearing. ¹

Before accepting the plea of guilty on the charges, the plea court read them in substantially the same language as contained on the information. The court then asked the defendant, "did you do the things that I have read that it says you did in these charges?" Movant answered in the affirmative. The court then asked, "Is there anything I have just read that it says you did in these charges that you did not in fact do?" Movant's answer was "No, Your Honor."

The court did not request an explanation of the evidence that would be available to prove each charge. The defendant was not asked to explain any of his acts that precipitated the charges. Movant acknowledged he was satisfied with the services rendered to him by his attorney. Counsel for defendant affirmed there were no facts or circumstances not in the record that would bear on movant's ability to know and appreciate the nature of the proceedings or his ability to formulate the necessary intent to enter a free and voluntary plea of guilty.

Movant's first claim of error relates to counsel's failure to investigate alibi witnesses. We are unable to determine from the legal file or the briefs filed whether movant contends there were alibi witnesses for one or both of the two dates on which the charged crimes were committed. It is not clear which events were the subject of the proposed alibi. The pleading is insufficient for the further reason that movant does not allege he ever informed trial counsel of the existence of any witnesses or that they were prepared to give testimony that would represent an alibi defense to one or both of the events charged. Even if the pleading implies such communication, movant's testimony refutes the implication and the allegation. Movant informed the plea court his counsel did not fail to do anything that movant thought counsel should have done and that he was satisfied with the services that were rendered. In context with the claim of available witnesses to present an alibi defense, movant's acknowledgment of satisfaction with his attorney is more than a general, unreliable expression of satisfaction. If movant had an alibi to either of the sets of charges and had furnished the names and addresses of alibi witnesses, then the failure of counsel to pursue such a defense should provoke an affirmative answer to either or both of the court's questions regarding satisfaction with performance and absence of nonperformance.

The issue raised in the second amended motion asserts the guilty pleas must be set aside because the court failed to establish a factual basis for each charge. The argument is that a mere reading of the indictment and amended information in the two cases did not identify the conduct upon which the state would rely to prove its charges. Obviously, the mere reading of the charges has created problems that should be avoided.

No evidentiary hearing is automatically necessary to determine whether the record contains a factual basis for each guilty plea as required by Rule 24.02(e). This is a matter to be resolved by a study of the plea hearing. A plea court is obligated to determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged. Morris v. State, 482 S.W.2d 459, 460 (Mo.1972). We have held that a guilty plea cannot be accepted unless a factual basis for the plea is established and the court at a guilty plea proceeding should reject the plea if the record facts do not establish the commission of a crime. Jones v. State, 758 S.W.2d 153, 154 (Mo.App.1988). Rule 24.02(e) mandates establishing a factual basis before accepting a plea.

The...