McCartney v. State, WD
| Decision Date | 12 July 1983 |
| Docket Number | No. WD,WD |
| Citation | 657 S.W.2d 289 |
| Parties | James R. McCARTNEY, Movant-Appellant, v. STATE of Missouri, Respondent. 33870. |
| Court | Missouri Court of Appeals |
Michael W. Walker, Kansas City, for movant-appellant.
John Ashcroft, Atty. Gen., Joseph Colagiovanni, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and DIXON and NUGENT, JJ.
Movant appeals from the denial of his motion for relief pursuant to Rule 27.26. The single issue is whether the defendant's plea was unintentional and involuntary because of ineffectiveness of counsel premised upon movant's claim that a plea bargain was unfulfilled. The movant was charged in two cases of burglary in the second degree. The second burglary contained a separate count of stealing. The movant entered a plea, which included a dismissal of the stealing charge. It is to the proceedings concerning this plea that the movant addresses his claim that his counsel was ineffective.
Movant asserts that there was an unfulfilled plea bargain agreement and that his counsel was thereby ineffective. Movant had prior convictions for burglary, attempted burglary, stealing, and narcotics violations.
Prior to movant's appearance for his guilty plea proceeding, the state and counsel for the defendant had discussed the possibilities of a plea bargain. The only record reference to this agreement appears in the transcript of the plea proceedings as follows:
THE COURT: Now, the only committment [sic ] I've made to your attorney is, really two, one, that I'd defer sentencing on both cases and order a pre-sentence investigation report.
A. Yes, sir.
THE COURT: The second thing is that after I get that P.S.I., if I do incarcerate you at that time, the maximum sentence I will impose on all three charges would be seven years.
A. Yes, sir.
THE COURT: Now, that's the only committment [sic ] I've made to your attorney.
A. Yes, sir.
After this statement, the trial court entered into a lengthy exchange with counsel and the defendant to insure that the defendant understood the nature of the proceedings and the extent to which the court was bound in connection with the guilty plea agreement. The court then pointed out to the defendant that a pre-sentence investigation would be made and that he would not be sentenced immediately.
The court acknowledged that under the plea negotiations no sentence greater than seven years would be imposed if the defendant were incarcerated at the time of the hearing on sentence after the pre-sentence investigation. The court further noted that if the defendant were placed on probation, the court had made no commitment as to the length of probation or sentence, nor as to the suspension or imposition of execution of sentence. The court further explicated its position by asking the following questions:
THE COURT: You understand that if I do suspend execution of sentence and put you on probation, I can sentence you to a total of twenty-five years?
A. That's fine.
THE COURT: You understand that?
A. I do.
THE COURT: And that if I do put on probation and you violate probation that after a hearing, I could, you could go to the penitentiary for a greater term than seven years, if I go that route.
A. Yes, sir.
THE COURT: You understand that?
A. Yes, I do.
After all of the foregoing, the court then asked movant if he wished to have his plea of guilty accepted and also addressed movant's attorney and asked the attorney if there was any reason why the plea should not be accepted. The defendant thereupon entered his plea.
Against this background the movant now claims that there was an unfulfilled plea bargain agreement and that the court would not permit him to withdraw his guilty plea on the basis of that unfulfilled plea bargain agreement. This contention of the defendant arises because the court sentenced the defendant to ten years for second degree burglary, five years for stealing with a five year probationary period, and suspended the sentences pending satisfactory probation period. The defendant was thereafter convicted of a felony and his probation revoked.
Movant's argument is that the actions of the trial judge amounted to a rejection and alteration of the plea bargain. From this, the movant contends that the trial judge was "involved" in the plea bargaining with the defendant present, which he urges is contrary to the holding of State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969), and cites as further support the cases of Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978), and McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978). Schellert holds that if the court refuses to accept the plea bargain, the defendant must be given an opportunity to withdraw his plea. McMahon asserts that Schellert adopts Fed.R.Crim.P. 11(e)(4). The Missouri rule, Rule 24.02(d)(4), is a rescript of the federal rule except for references to pleas of nolo contendere. If the action of the trial court were construed as a participation in the plea bargain, or a rejection of it, this case might present a serious question.
The movant's argument is untenable on the face of this record. This is not a case where the defendant had waived his right to a pre-sentence investigation under § 557.026 RSMo 1978. A pre-sentence investigation was part of the plea bargain. The trial court, having ordered a pre-sentence investigation and not having a plea bargain for probation before him, was under an obligation to tell the movant the options available to the court after such a pre-sentence investigation. All of these options were more favorable to the defendant than seven years immediate confinement would have been if probation was not granted. Movant and his counsel undoubtedly though so, for they raised no objection to the court's statement of the alternatives. The trial court did not alter the basic plea agreement nor reject it; the...
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...State recommended, did not violate the plea agreement. See, e.g., Lawson v. State, 757 S.W.2d 646, 648 (Mo.App.1988); McCartney v. State, 657 S.W.2d 289, 291 (Mo. App.1983). McCartney is on all fours with the case at bar. There, the parties agreed that: (1) sentencing would be deferred pend......
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