McKnight v. State, KCD26220
| Decision Date | 25 June 1973 |
| Docket Number | No. KCD26220,KCD26220 |
| Citation | 497 S.W.2d 201 |
| Parties | Gregory McKNIGHT, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
This is an appeal from a judgment and order of the court below entered on May 25, 1972, denying appellant's motion to vacate judgment and sentence under Rule 27.26, V.A.M.R. Upon a plea of guilty, the appellant was sentenced on April 3, 1971 to five years for stealing from the person. He urges that the court below erred in denying him relief under his motion for two reasons. First, the guilty plea was not voluntary in the legal sense because it was induced by the false promise of his attorney that such plea would result in probation or at most a sentence of one year in the county jail. Second, he was denied effective assistance of counsel because his lawyer failed to investigate the case except for several personal interviews with the defendant himself.
We have before us the transcript of the proceedings on January 28, 1971, when the guilty plea was entered, and it is therein conclusively shown that the defendant and some friends on November 13, 1970 at the Country Club Plaza in Kansas City, Missouri snatched the pocket book of a lady named Donna Bishop; although defendant denied that he personally snatched the pocket book, he was present and was immediately apprehended 'down the street a little' from the scene; that he admitted his guilt at police headquarters; that his counsel had advised him of the penalties that could be imposed on the charge, that he was entitled to a jury trial, and that a trial could result in acquittal. He further stated that he was not under the influence of narcotics or alcohol at the time of the stealing and that he had never had any mental problems. He specifically admitted that he was a part of the purse snatch and was pleading guilty for that reason.
The court thereupon continued the bond and ordered a pre-sentence investigation.
Thereafter on April 3, 1971, at the time defendant appeared for allocution and sentencing, the record shows that at the time of the purse snatch involved the defendant was on a parole from Kansas City, Missouri for assaulting a police officer and that three days after his guilty plea of January 28, 1971, he was arrested and charged with strong-arm robbery and auto theft, to which charge he had likewise entered a plea of guilty. It was further brought out at this hearing that the victim of the purse snatch, Donna Bishop, had positively identified the defendant as the person who held her while one of his two companions snatched her purse. At this time, the court below imposed the sentence herein sought to be set aside.
On May 25, 1972, an evidentiary hearing was held before the Honorable James A. Moore in Jackson County on the 27.26 motion. In support of his claim that the plea was induced by the unfulfilled promise of his lawyer, the appellant testified that he agreed to plead guilty only because his lawyer had assured him that he would probably receive probation, but that in no event would he spend more than one (1) year in jail. However, the state called appellant's counsel, who affirmatively testified that he made no guarantees or promises to him of any kind with regard to the sentence he could expect. Nor had he engaged in any plea bargaining with the prosecutor's office.
The trial court specifically found that the plea of guilty was entered voluntarily and that the appellant's lawyer did not promise that the plea would result in lenience. It is true that a criminal defendant may withdraw his guilty plea if he can demonstrate that it was entered under a misapprehension of its result because of the misrepresentations of his own lawyer. State v. Rose, 440 S.W.2d 441 (Mo.1969). However, if the trial court finds (as it did here) that the promises asserted by the appellant had not, in fact, been made, '(T)his amounts to a finding that there was no reasonable basis for what movant now asserts to have been his belief at the time of the plea, entitling the trial court to disregard the now asserted...
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