McMahon v. State

Citation569 S.W.2d 753
Decision Date12 September 1978
Docket NumberNo. 60569,60569
PartiesPatrick H. McMAHON, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtUnited States State Supreme Court of Missouri

Phillip J. Barkett, Jr., Dempster, Yokley, Fuchs & Barkett, Sikeston, for movant-appellant.

John D. Ashcroft, Atty. Gen., Kathryn M. Krause, Asst. Atty. Gen., Jefferson City, for respondent.

JOSEPH J. SIMEONE, Special Judge.

I.

After an evidentiary hearing, the Circuit Court of Scott County, on September 21, 1976, denied movant-appellant, Patrick H. McMahon's motion to vacate filed pursuant to Rule 27.26, V.A.M.R. He appealed to the Springfield District of the Court of Appeals which affirmed the denial of the motion. We granted transfer of the cause and now review the case as on original appeal. Mo.Const. Art. V, § 10, as amended 1970; Rule 83.03. Our review is limited to whether the findings and judgment are clearly erroneous.

The issues presented in the case are: (1) whether a plea of guilty is involuntary when the defendant "believes" he is to receive a sentence recommended by the state or agreed to by the prosecutor and defendant, but is informed at the guilty plea proceeding that the court is not bound by any recommendation or agreement and the court at the time of the plea disabuses him of such belief, and (2) whether we should reverse the order of the trial court in denying the motion to vacate because the defendant alleges he was not given an opportunity to withdraw his plea.

As to issue (1) we hold that where the record of the guilty plea clearly refutes the defendant's belief that he would receive a lesser sentence than that imposed so as to make the belief unreasonable, the plea is not involuntary and (2) we decline to reverse the denial of the motion to vacate because the defendant under the guilty plea record was afforded the opportunity to withdraw his plea.

II.

In early 1975, movant-appellant was charged with seven counts of burglary and six counts of stealing for having broken into several homes in Bollinger County and stealing certain items. A change of venue was granted to Scott County; arraignment was held and movant pleaded not guilty. The cause was set for trial on October 2, 1975. On September 30, 1975, the movant appearing with retained counsel pleaded guilty before the Circuit Court of Scott County. Lengthy plea discussions took place before Judge Stanley Grimm; a presentence investigation was ordered and sentencing was returnable at a later date. On January 13, 1976, the sentencing hearing was held and the court sentenced movant to ten years on each of seven counts of burglary and three years on six counts of stealing for a total of thirteen years "to run concurrently with any sentence (movant) may have received in St. Louis County . . . ." 1

On March 23, 1976, movant filed his motion to "vacate, set aside or correct" his sentence 2 imposed by the circuit court. He alleged that his convictions violated constitutional provisions because (1) the pleas were obtained by "trickery and the holding out of hopes which proved to be false and ill founded"; (2) his counsel "had movant believing that he would receive eight years on all the charges running concurrently with the St. Louis County sentence" and (3) "(he) was denied effective counsel because counsel misled (him) into thinking that he would get eight years for all the charges running concurrently."

Counsel was appointed on the motion to vacate and an evidentiary hearing was held on September 2, 1976, before Judge Marshall Craig, at which movant, his wife, his brother and retained counsel testified. 3

The evidence and stipulations showed that Mr. McMahon tested at the "fifth grade level" on the standard oral reading paragraph test, had a score of 86 on the "Revised Beta IQ Test", and on another test level "tested out at the fourth grade level."

At the evidentiary hearing, Mr. McMahon testified that he was charged with the numerous counts of burglary and stealing and employed retained counsel to represent him on the charges. Movant lived in St. Louis and his attorney officed in Cape Girardeau. The thrust of his testimony was that he received a letter from his attorney relating to the trial setting; that he called the attorney and the attorney informed him that "the best we can get you for right now, (is) eight years, (which would) run it concurrently with St. Louis time." According to movant the attorney informed him that "(I)f I got five years in St. Louis, he'd get me five years down here to run concurrently. He said if I got eight, it would be eight years." 4 Movant's attorney "told me to get down here if I wanted to plead guilty, take the deal he offered . . . ." Movant, his wife and brother went to Cape Girardeau that same day and conversed with the attorney who told him the

"best deal he could do for me is get me eight years, run it concurrently with St. Louis; that was the best he could do for me, if I wanted to, I had to sign these papers (A Petition to Enter Plea of Guilty). I signed them."

"Then he turned around and he said I would have to convince the judge to enter this plea of guilty, and so we came right on down here." (Cape Girardeau)

McMahon testified that his attorney and the prosecutor had "talked it all over" and that "I would get eight years, run it concurrently with eight years, . . . ." He admitted that the prosecutor made the recommendation to the court as he promised, and believed that he would receive only eight years.

On cross-examination he recalled being told by the judge at the guilty plea hearing of the range of punishment "ninety-something years, . . ." and remembered that his attorney stated that the prosecutor agreed to recommend "no less than five years, no more than eight years . . . ." He recalled that the prosecutor at the guilty plea did make the recommendation, and recalled that the prosecutor told him that the court did "not necessarily follow that recommendation . . . ." He also recalled that the judge at the guilty plea proceeding indicated to him that the court was "not bound by that recommendation, and I want you to clearly understand that." But movant persisted in testifying that he thought he had a "deal". "I believe the deal was a deal. That is all I know." He admitted knowing that the court was not bound by any attorney's recommendation. At the guilty plea proceeding the court stated:

"I'll say to you I don't have the intention of giving you one hundred years, which is the maximum that I can give you, but I want you to know that I really have the right to give you any number of years from two up to one hundred years, and I don't want you to think you may get by with only five or eight years, do you understand that?" The movant replied "Yes, Your Honor." (Emphasis added.)

Mr. McMahon testified that he was not given an opportunity to withdraw his plea, but neither did he seek to withdraw the plea at that time. On cross-examination movant acknowledged that he understood all the questions asked of him by the court at the plea proceeding.

As to the petition to plead guilty, movant testified that the paper or petition was blank when he signed it.

Movant's wife and brother corroborated much of the movant's testimony.

Movant's retained trial attorney testified at the evidentiary hearing. Contrary to the movant's testimony, he testified that he went over the petition to plead guilty "step by step". He also stated that movant was told that the prosecutor had agreed to recommend a sentence equal to the sentence in St. Louis County "providing it was not more than eight or less than five." The attorney informed movant that the judge "did not accept recommendations point blank and that . . . sentencing would simply be up to (the judge's) discretion." Also contrary to movant's testimony, the transcript of the plea proceeding shows that movant's attorney had gone over the Petition to Enter a Plea and that the blank spaces were all filled in before movant signed such petition.

A transcript of the plea proceedings taken on September 30, 1975, was introduced at the 27.26 evidentiary hearing. The guilty plea proceedings show that the trial court in twenty-one pages meticulously informed movant of all his constitutional rights, made it abundantly clear that although the prosecutor recommended five to eight year sentences to run concurrently with the St. Louis County sentence, the court was not bound by any recommendation or by any agreement reached by counsel with movant, that the court had no intention to permit defendant to "get by" with only five or eight years, that movant could be sentenced to a much longer period than eight years one hundred and finally that the court was not bound to impose a sentence to run concurrently with the sentence received in St. Louis County.

At the termination of the plea proceedings the sentencing judge found the movant guilty on all seven counts and ordered a presentence investigation returnable at a later date.

On January 13, 1976, the movant appeared for sentencing. At that time the movant sought probation; his attorney informed the court that "Pat" was "not the same man . . ." and the prosecutor reminded the court that at the time of the plea he made a recommendation and "would make the same recommendation that was made at that time." The court sentenced movant to concurrent ten years on seven counts of burglary and three years on six counts of stealing all to run concurrently with the sentence imposed by the Circuit Court of St. Louis County.

The trial court, in accordance with Rule 27.26, made findings of fact and conclusions of law. The order stated that movant alleged he was "led to believe that he would get eight years on all charges running with the eight years . . . " in St. Louis County and that he was so told by his attorney but that the court did not follow the recommendations. The order recited that a lengthy record of the guilty pleas was made and "went over the fact . . . " ...

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    ...each and every detail is explained to a defendant but whether the plea in fact is intelligently and voluntarily made." McMahon v. State , 569 S.W.2d 753, 758 (Mo. banc 1978). In claiming his plea was coerced by his plea counsel’s alleged threat, Johnson must show he was "induced to plead gu......
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