Knight v. State, 15560

• Court: Missouri Court of Appeals
• Writing for the Court: HOGAN
• Citation: Knight v. State, 760 S.W.2d 559 (Mo. App. 1988)
• Decision Date: 08 November 1988
• Docket Number: No. 15560,15560
• Parties: Randy J. KNIGHT, Appellant, v. STATE of Missouri, Respondent.

Page 559

760 S.W.2d 559

Randy J. KNIGHT, Appellant, v. STATE of Missouri, Respondent.

No. 15560.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 8, 1988.

Motion for Rehearing or Transfer

Denied Nov. 22, 1988.

Larry C. Pace, Kansas City, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

HOGAN, Judge.

This appeal is taken from the denial of a motion to withdraw a plea of guilty and to set aside judgment under former Rule 27.26, now superseded. Inasmuch as sentence was pronounced before January 1, 1988, and this proceeding was pending at that time, this appeal is governed by the law applicable to former Rule 27.26. Rule 24.035(b).

On May 13, 1986, the movant (hereinafter Knight or the defendant) pled guilty to a charge of second-degree burglary in violation of § 569.170, RSMo 1986. Pursuant to a plea bargain, defendant's punishment was assessed at imprisonment for a term of ten years. On December 1, 1986, defendant filed a motion to withdraw his guilty plea and vacate the sentence imposed. Relief was denied and the defendant appealed.

The appeal has been most inadequately briefed and presented. The hearing on the postconviction motion generated a record of more than 80 pages; the transcript of the plea of guilty ran to 21 pages, excluding the title page and the certificate. Nevertheless counsel on appeal has limited himself to a seven-sentence "statement of facts" which is wholly insufficient as a "fair and concise statement of the facts relevant to the questions presented for determination ..." as required by Rule 84.04(c). Further, in order to determine whether the defendant's plea was knowingly and voluntarily entered, this court was obliged to order the record supplemented by inclusion of the transcript of the guilty plea. The brief is so patently inadequate as to justify our dismissal of the appeal, Overall v. State, 540 S.W.2d 637, 638 (Mo.App.1976), but in the exercise of discretion we address the defendant's complaints as we are given to understand them.

We are obliged to look to the motion court's findings of fact to determine the factual background of the appeal. Those findings recite that in 1985, Randy Knight was charged with burglarizing the Church of God Holiness building in Lowry City, Missouri, and stealing personalty from the church. Both crimes charged are Class C felonies.

Knight was indigent. Through the Public Defender's Office, Mr. Dan Purdy, an experienced attorney who maintains his office at Osceola, Missouri, was appointed to represent him. Knight pled not guilty to the charges of burglary and stealing and trial of the cause was set for May 13, 1986. At the time, Knight was serving a seven-year sentence imposed after he was convicted of stealing cattle in 1983.

Knight appeared in the Circuit Court of St. Clair County on May 13, 1986. The transcript of the guilty plea, made as required by Rule 24.03, shows that the trial court addressed Knight personally in open court as required by Rule 24.02(b). His interrogation began thus:

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"THE COURT: The record indicates that on October 7, 1985 you [Knight] appeared here in person and with your attorney Dan K. Purdy and entered a plea of not guilty to the burglary and stealing charged in the Information, after you had waived the reading of the Information. Now what is the purpose of your appearance here today?

MR. PURDY: If, Your Honor, please, at this time the Defendant would ask leave of Court to withdraw his plea of not guilty and enter a plea of guilty pursuant to plea negotiations with the State.

THE COURT: Do you understand, Mr. Knight, that you are charged with a Class C felony of burglary and the Class C felony of stealing in this Information?

MR. PURDY: Let me correct that, Your Honor. The Defendant is pleading guilty to the Class C felony of burglary. We understand the State will be dismissing the stealing charge.

MR. ASH: ¹ That's correct, Your Honor.

THE COURT: Do you want to plead guilty to the Class C felony of burglary then, Mr. Knight?

MR. KNIGHT: That's correct."

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Knight was then sworn and the court then proceeded to examine him on oath. The court addressed him further as follows:

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"[THE COURT]: Now the State has charged you as a persistent offender. It appears that they charged you in the past being convicted at separate times of, they charged you in the past but you have been convicted of four felonies that occurred at different times. Do you also understand that that is what you have been charged with doing?

[MR. KNIGHT]: I wasn't understanding that as what was told to me, no.

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MR. PURDY: Well, you understood, Randy, and I explained it to you that you were charged as a persistent offender.

[MR. KNIGHT]: Prior offender on the last case I was before him on.

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MR. PURDY: Now, you are a persistent offender. Now you recall the last time we argued about the validity of some of these convictions?

[MR. KNIGHT]: That's correct.

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MR. PURDY: We are talking about the record, but now you have two more felonies committed at different times previously which makes you a persistent offender standing here being charged here with the third one.

[MR. KNIGHT]: So I am being tried as a persistent offender?

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[MR. KNIGHT]: I am charged, is that what we are talking about?

THE COURT: And that has to do with the range of punishment this--

[MR. KNIGHT]: At this time.

MR. PURDY: Right.

[MR. KNIGHT]: On this case, not on the last case, this case?

MR. PURDY: No, we are talking about the case in Court, you are a persistent offender.

[MR. KNIGHT]: O'kay.

THE COURT: What do you understand, Mr. Knight, is the maximum sentence you could receive on this particular burglary charge as a persistent offender?

[MR. KNIGHT]: Ten year sentence, Your Honor.

MR. PURDY: No.

THE COURT: The maximum.

[MR. KNIGHT]: Oh, the maximum, excuse me, yes, he explained to me it would be more than a ten year sentence.

THE COURT: What do you understand is the maximum sentence you could receive on this charge, if you were found to be a persistent offender?

MR. PURDY: Did I advise you, you could be sentenced up to fifteen years?

[MR. KNIGHT]: That's correct, Your Honor, now that I understood that part from my attorney, yes, Your Honor. That has nothing to do with the agreement.

THE COURT: That's right, that is the maximum.

[MR. KNIGHT]: I understand.

THE COURT: That is the maximum.

[MR. KNIGHT]: He told me that prior to this, numerous times that fifteen years was the maximum that I would be able to be given on this type of charge. I understand that." (Our emphasis.)

Without quoting the transcript of the guilty plea verbatim, we observe that the trial court advised Knight he had a right to a jury trial; that the State would have the burden of proving his guilt beyond a reasonable doubt, and that if he could not afford an attorney, counsel would be appointed to represent him. The trial court also explained to Knight that he would have the right to confront and examine the witnesses called by the State and the right to subpoena witnesses in his own behalf. Knight was also advised of his right to testify and his privilege against self-incrimination. Knight was advised, and stated he understood, that if he pled guilty he would waive the rights which had been explained to him.

The court then addressed the Prosecuting Attorney thus:

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"THE COURT: Mr. Ash, have you indicated to the defendant or to his attorney what you would recommend if he pled guilty to this Class C felony of burglary in the second degree as charged in the Information?

MR. ASH: Yes, I have.

THE COURT: What did you indicate?

MR. ASH: I indicated to him that I would recommend he be sentenced to ten years in the State Penitentiary, that he would be given credit for time actually served in the St. Clair County Jail. I have also indicated to him that the misdemeanor charge of escape that was filed would be dismissed.

MR. PURDY: Also, that the ten years would be to run concurrent with any other sentence he was serving.

MR. ASH: Yes, and that ten years would run concurrent with any other sentencing on CR505-189FX.

THE COURT: Which is the stealing charge?

MR. ASH: Which is the stealing charge and the cattle theft charge.

THE COURT: Let me ask for clarification. Are you serving any other sentences other than the one for this cattle theft?

[MR. KNIGHT]: No, Your Honor, I am not. There is one case and one case only.

THE COURT: O'kay. Now, Mr. Purdy, was that what you thought the court would recommend?

MR. PURDY: That was my understanding, Your Honor.

THE COURT: Mr. Knight, did you understand what Mr. Ash said?

[MR. KNIGHT]: Yes, Your Honor, at that time.

MR. PURDY: All charges you understand, all charges are being dismissed; all Counts are being dismissed except Count I charging the burglary?

[MR. KNIGHT]: Yes.

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[THE COURT]: You can waive your rights that you and I have discussed here this morning and plead guilty if you want to or you can exercise your rights and I need to know from you what you intend to do?

[MR. KNIGHT]: O'kay, what I intend to do, Your Honor, is to waive my rights and plead guilty to the charge."

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* * * Knight then admitted that on September 2, 1985, he broke and entered into a building known as the Church of God Holiness for the purpose of committing a theft. The trial court then addressed Knight further, thus:

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"THE COURT: This Court finds that the Defendant's plea of guilty is made voluntarily and intelligently and with a full understanding of the charge and consequences of the plea and with a full understanding of his rights attending a jury trial.... The Court also finds that there is a factual basis for the plea. The plea of guilty is accepted and the Defendant is found guilty of the Class C felony of burglary in the second...