McCormick v. State, 35869

• Decision Date: 08 April 1975
• Docket Number: No. 35869,35869
• Citation: 523 S.W.2d 854
• Parties: Donnie Ray McCORMICK, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District. Division Three
• Court: Missouri Court of Appeals

Page 854

523 S.W.2d 854

Donnie Ray McCORMICK, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

No. 35869.

Missouri Court of Appeals, St. Louis District. Division Three.

April 8, 1975.

Motion for Rehearing or Transfer to Supreme Court Denied May

19, 1975.

Application to Transfer Denied July 14, 1975.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, John C. Briscoe, Pros. Atty., Ralls County, New London, James Millan, Pros. Atty., Pike County, Bowling Green, for defendant-appellant.

William B. Spaun, Hannibal, for plaintiff-respondent.

GUNN, Judge.

Defendant appeals from a denial of his application for writ of error coram nobis which was filed to vacate a judgment entered March 16, 1962. The judgment of March 16, 1962 was based on defendant's pleas of guilty to charges of breaking and entering and stealing. Defendant was sentenced to a term of two years for breaking and entering, and a penalty of two years was assessed for stealing, with the sentences to run concurrently. He was granted a 'bench' parole which was revoked in November, 1963, and the sentences were served. On February 28, 1967, after trial as a second offender, defendant was found guilty of first degree murder and sentenced to life imprisonment. In support of his application for writ of error coram nobis, defendant asserts that he was not represented by counsel at the time he pleaded guilty to the charges on March 16, 1962; that under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the convictions for breaking and entering and stealing stand as invalid as a basis for trying defendant as a second offender on the first degree murder charge in 1967. We disagree with defendant's position and affirm the trial court's action in denying defendant's application.

Defendant's use of coram nobis as the vehicle for attacking the validity of a sentence already served is correct. State v. Crow, 475 S.W.2d 71 (Mo.1972); Stoner v. State, 507 S.W.2d 80 (Mo.App.1974). But the defendant has the burden of proof for relief by the preponderance of the evidence to set aside his plea of guilty and vacate the conviction. Deckard v. State, 492 S.W.2d 400 (Mo.App.1973). In this case, defendant's application for relief through coram nobis must fail for two separate reasons.

First, the defendant 'must demonstrate that he is suffering from present adverse legal circumstances in order to invoke coram nobis relief from a sentence already served.' Deckard v. State, supra, 492 S.W.2d at 403. The defendant must also show that he will achieve some benefit from the relief sought. Powell v. State, 495 S.W.2d 633 (Mo. banc 1973). Here, the defendant can show neither present adverse legal circumstances nor that coram nobis would provide relief for him. In 1967, defendant was convicted of murder in the first degree and sentenced under § 559.030 RSMo, V.A.M.S., to life imprisonment, which is the minimum sentence for first degree murder. McClain v. State, 448 S.W.2d 599 (Mo.1970); State v. Floyd, 403 S.W.2d 613 (Mo.1966). Assuming arguendo, that the relief sought would be granted and the 1962 conviction vacated, defendant's position is not improved. Life imprisonment would have been imposed for the 1967 first degree murder conviction--second offender or not. Since defendant cannot suffer from any present adverse legal circumstances resulting from the 1962 conviction, there was no error in the trial court's denial of the application for writ...