Lohman v. State, 52827

• Decision Date: 06 October 1987
• Docket Number: No. 52827,52827
• Citation: 737 S.W.2d 524
• Parties: Robert William LOHMAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 524

737 S.W.2d 524

Robert William LOHMAN, Appellant, v. STATE of Missouri, Respondent.

No. 52827.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 6, 1987.

Lindell P. Dunivan, Farmington, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Movant Robert Lohman appeals denial of Rule 27.26 post-conviction relief. Movant sought relief from a life imprisonment sentence imposed following a plea of guilty for second degree murder, Section 565.004 RSMo 1978 (repealed 7-1-84). The motion court granted the state's motion for summary judgment and denied relief without an evidentiary hearing. The only claim of error is that an evidentiary hearing was required because appellant's motion raised substantial issues regarding whether movant's plea was made voluntarily and intelligently. We affirm.

Our review of this post-conviction motion is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). Such a determination will be made only if "the appellate court is left with a definite and firm impression that a mistake has been made." Abrams v. State, 698 S.W.2d 15, 17 (Mo.App.1985). Movant bears the burden of showing that the denial of his Rule 27.26 motion was clearly erroneous. Bailey v. State, 738 S.W.2d 577 (Mo.App. 1987).

In the present case, movant claimed his guilty plea was not voluntary or was not made intelligently, for two reasons: (1) movant did not understand the charge to which he was pleading guilty; and (2) movant did not admit to the killing which followed a kidnapping by defendant and his brother.

An evidentiary hearing is required only if movant meets each of the following qualifications: (1) The motion must allege facts, not conclusions, warranting relief; (2) Those facts must raise matters not refuted by the files and records in the case; (3) The matters complained of must have resulted in prejudice to the defendant. Smith v. State, 652 S.W.2d 134 (Mo.App.1983).

Movant asserts that he did not understand that he was in fact pleading guilty to a charge of second degree murder. Movant offers as support his plea proceeding statement, "your honor, I plead guilty to the fact I was aware of the kidnapping. There was a kidnapping involved."

Movant argues that this refutes any inference of his understanding that he was charged with second degree murder because it indicates guilt only as to the kidnapping. We are not persuaded. Review of the entire record clearly indicates that movant realized the impact of his participation in the kidnapping and the murder which followed. The record contains the following:

TRIAL COURT: Are you pleading guilty because you are, in fact, guilty and admit that you committed the offense charged of murder in the second degree?

DEFENDANT: Yes, sir.

TRIAL COURT: Mr. Lohman, in your own words I would like you to start from the beginning and tell me what you did on August 27th to become guilty of this offense.

DEFENDANT: Your honor, I plead guilty to the fact I was aware of the kidnapping. There was a kidnapping involved.

TRIAL COURT: All right. Why don't you just start at the beginning and tell me about it? [our emphasis]

In recounting the events surrounding the crime, movant admitted his involvement in both kidnapping and murder. When referring to the victim's death, movant stated: "Within thirty seconds [my brother] had struck and killed Donna Roberts, which, therefore, made me part of the murder." (Emphasis ours). Movant then described the manner in which he and his brother disposed of the victim's body, and concluded "and from there I was guilty of the fact of second degree murder." The transcript and record clearly refutes movant's claim and supports the motion court's finding that, as a matter of law, movant was not entitled to an evidentiary hearing on the basis of his allegation that he did not understand.

Movant further argues for the evidentiary hearing because he did not admit to the killing in the manner the amended information charged. The amended information stated that defendant ...