Latham v. State

• Decision Date: 14 April 1969
• Docket Number: No. 54041,No. 1,54041,1
• Parties: William H. LATHAM, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 737

439 S.W.2d 737

William H. LATHAM, Appellant, v. STATE of Missouri, Respondent.

No. 54041.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

Edgar M. Eagan, Jefferson City, of counsel, for appellant.

Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

This is an appeal from an order denying a motion by William H. Latham under Criminal Rule 27.26, V.A.M.R. to vacate and set aside a judgment and sentence.

Charged with burglary, second degree, § 560.070, RSMo 1959, and stealing, defendant pleaded guilty on March 1, 1968, to burglary, and was sentenced to five years' imprisonment. The state dismissed the stealing charge.

On May 16, 1968 appellant filed this motion to vacate, stating as grounds therefor that the plea of guilty 'was illegally induced by coercion, promises, fear, inadvertence, and unfairly obtained, and thus involuntary, and most inconsistent with due process of law, and void'; that he was indirectly informed that his two stepsons would be sent to prison unless he first entered a plea of guilty, and that if he did so his stepsons would be released on probation on a misdemeanor charge, reduced from a felony charge, and that although not guilty he entered the guilty plea for fear of the danger and harm a criminal record and imprisonment could do to his stepsons; that movant was innocent of the charge of burglary; and that he was wrongfully sentenced to a felony conviction for five years for burglary of a building which was a schoolhouse, under § 560.070, RSMo 1959, whereas he should have been charged with trespass upon school property, only a misdemeanor under § 560.465.

Two attorneys were appointed to represent him at the hearing of the motion to vacate. One of the stepsons testified and the other's affidavit was accepted as the testimony which he would have given if present. Their testimony indicated that they broke into a schoolhouse and removed therefrom a quantity of soybeans; that just the two boys broke into the schoolhouse and did the stealing and that the stepfather was not involved; that the two boys and appellant later sold the beans, using appellant's truck in transporting them; that the boys had told appellant that they bought the beans; that the three were arrested and charged with burglary and stealing; that the sheriff told the boys that if their stepfather would enter a plea of guilty the boys would be released on the lesser charge of destruction of private property; that the stepfather entered his plea of guilty and the prosecuting attorney then reduced the charge against the boys to destruction of private property; that the boys pleaded guilty thereto and were sentenced to one year in jail, with two years' probation.

Appellant testified that he had a conversation with the sheriff; that he tried to get the sheriff to let the boys out because appellant's wife was about eight miles out in the country and was destitute and had to have someone out there with her; that that was his main concern; that the sheriff told him that he should think of his boys first; that the sheriff would recommend probation; that whether Latham pleaded guilty or not he 'was to go through a trial on it'; that if he went ahead and pleaded guilty 'right now' the boys 'could get off free' (on parole). He assumed that the sheriff had talked with the prosecuting attorney. He asked his attorney to speak to the prosecuting attorney and see if the latter would be willing to reduce the charges as to the stepsons if appellant entered a plea of guilty; that he had fear for his boys; that he considered that the reduction of the charges against the boys 'was just the same as turning them free,' and that was what he 'was after'; that he did not 'know what rights he had.' Appellant's criminal record was brought to his attention, and he admitted a long series of convictions and incarcerations in various penitentiaries. The transcript of the hearing at which appellant pleaded guilty was read to appellant, and he agreed that the events therein recited happened as reported and had no corrections to make in the transcript. It showed that appellant was represented by an attorney, who was present; that his attorney stated that he had talked to appellant 'and he wants to plead'; that the judge informed appellant that he had a right to a jury trial, to be confronted by witnesses and an opportunity to cross-examine them; that he was presumed to be innocent until proved guilty beyond a reasonable doubt; that appellant pleaded guilty as charged, after having the information read to him. The court asked if he was pleading guilty because he was in fact guilty, and appellant answered 'I am the one, yes, sir.' Again the court asked, 'You are in fact guilty?' And appellant answered, 'Yes, sir.'

At the conclusion of the hearing the judge found that movant 'failed to sustain the burden entitling him to any affirmative relief by his motion for review'; that the plea of guilty was entered voluntarily and knowledgeably; that there was no coercion; that movant did not enter the plea in ignorance, fear or through inadvertence, and that considering defendant's long criminal record the sentence was not excessive. Movant appealed.

The question is whether the circuit court abused its discretion in denying the motion to withdraw the plea of guilty and in determining that the plea was made 'voluntarily with understanding of the nature of the charge.' Criminal Rule 25.04. We remind ourselves that a plea of guilty should be received with caution, and only if freely and voluntarily made; that if the defendant has been misled or induced to plead guilty by fraud, mistake, misapprehension, coercion, duress or fear, he should be permitted to withdraw the plea. State v. Harris, Mo.Sup., 420 S.W.2d 325.

On this review we find ample support for the trial court's finding that appellant's plea of guilty was freely and voluntarily made, fairly obtained and that appellant was not misled and no basis for appellant's claim that the plea was illegally obtained by coercion, promises, fear or inadvertence.

Appellant's principal point is that although he is innocent of the crime he was induced to plead guilty and 'take the rap' himself because of the inducement held out by the sheriff that if appellant pleaded guilty the felony charges filed against his stepsons would be reduced to misdemeanors and that the stepsons would be granted probation upon pleading guilty, thereby releasing them to assist in caring for appellant's wife. Such a motivation is not a sufficient reason in law to invalidate a plea of guilty, where accused at the time of the plea was represented by competent counsel and the plea was otherwise voluntarily entered into.

In State v. Maloney, Mo.Sup., 434 S.W.2d 487 (1968), movant testified that among several other inducements his mother implored him to plead guilty to several charges because if he did not do so and received a death sentence it 'would kill' his grandmother; that she would commit suicide. On that phase of the case we ruled that 'Appellant's mother may have encouraged the guilty pleas, but that was not legal coercion.' 434 S.W.2d, l.c. 494.

In Kent v. United States, 1 Cir., 272 F.2d 795, 798 (1959), the court said: 'Similarly, petitioner recites that his fiancee 'confessed' in writing, and orally acknowledged her confession to him, and that he was told she would be charged as an accessory. We are not prepared to say that it can be coercion to inform a defendant that someone close to him who is guilty of a crime will be brought to book if he does not plead. If a defendant elects to sacrifice himself for such motives, that is his choice, and he cannot reverse it after he is dissatisfied with his sentence, or with other subsequent developments. Cf. Brown v. United States, 5 Cir., 1953, 204...