McNeal v. State, KCD26468

• Decision Date: 03 December 1973
• Docket Number: No. KCD26468,KCD26468
• Citation: 503 S.W.2d 19
• Parties: Harry J. McNEAL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 19

503 S.W.2d 19

Harry J. McNEAL, Appellant, v. STATE of Missouri, Respondent.

No. KCD26468.

Missouri Court of Appeals, Kansas City District.

Dec. 3, 1973.

William E. Erdrich, St. Joseph, for appellant.

John C. Danforth, Atty. Gen., Karen I. Harper, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.

SWOFFORD, Judge.

This is an appeal from a judgment and order of the court below entered November 3, 1972, denying appellant's pro se motion to withdraw a guilty plea under Rule 27.25 V.A.M.R. and to vacate judgment and sentence, and for other relief (inappropriate for such a motion and therefore disregarded here) under Rule 27.26 V.A.M.R. Upon a plea of guilty, the appellant was sentenced on July 24, 1970 to nine years for the offense of stealing over $50.00. He urges that the court below erred in denying him relief under his motion, for two reasons. First, that his plea of guilty 'was defective in that appellant did not plead intelligently and with a full understanding of the consequences'. Second, that he received ineffective assistance of counsel. We find no merit in either contention.

The transcript before us contains the record of four separate proceedings in the court below, namely, on June 3, 1970, July 24, 1970, April 26, 1971, and November 3, 1972, each of which will be hereafter separately noted.

The transcript of the proceedings had when appellant's plea of guilty was entered on June 3, 1970 conclusively shows from the appellant's own statement to the court that he was involved in a first degree robbery in St. Joseph, Missouri on May 12, 1970. In response to the court's question, 'Now tell me what you did', he stated that on May 12, 1970, he and two companions drove to St. Joseph from his home in Kansas City, Missouri and went to a place he described as the 'Legion'. They stayed there for a while and 'got some pills'. Appellant and his companions took about 9 or 10 'red' pills, not further described except that they were supposed to make one 'high.' They left the 'Legion' to get cigarettes and enroute stopped by one of the companion's home where a pistol was obtained. Appellant took the pistol from his companion. They then went to a store known as Arnold's Sundries located at 14th and Penn in St. Joseph and purchased some gum and cigarettes. As they were leaving, the appellant 'pulled the pistol' and said to the storekeeper, Arnold Levy, that 'it was a robbery' and directed one of his companions to 'get the money'. His companion took $250.00 in cash and the appellant and his companions then started by automobile to Kansas City.

They were stopped by police because of a defective tail light. The police then noticed that the car carried an expired license plate and then they heard a report over the radio with reference to the robbery at Arnold's. The appellant and his companions were taken to the Buchanan County Jail and a first degree robbery charge was filed against appellant and Ronald Thomas and Tony Gannaway, his companions. An appointment of counsel was made by the magistrate.

At the time of this robbery, the appellant was 17 years of age (he became 18 on August 2, 1970) and was then on parole from a charge of stealing over $50.00 in money 'from a man at his place of business'. While no detail appears in the transcript as to his education, it is apparent from his responses and his pro se motion that he is a young man of intelligence and awareness.

The record shows that appellant's court-appointed counsel examined the prosecuting attorney's and police file, made an independent investigation of the facts, and had numerous conferences with appellant and Thomas, whom he also represented as appointed counsel. This attorney quite logically concluded that the state had a strong case of first degree robbery and he and the appellant discussed the possibility of getting the charge reduced to stealing over $50.00 in return for a guilty plea. Counsel was successful in these attempts and preliminary hearing was waived, and on June 3, 1970, appellant and his counsel and an assistant prosecuting attorney appeared before Judge Connett and appellant entered his plea of guilty to the lesser charge.

The transcript of this hearing shows not only that the defendant gave a lucid, detailed and voluntary description of the robbery, but also unequivocally stated that it was his wish to enter the guilty plea; that he had fully discussed the matter with his counsel; that he had received no promise for a particular sentence; that he understood the court could sentence him 'anywhere from jail time to 10 years'; that he understood he could have a jury trial and did not want it, and that he still wished to enter his guilty plea. The state made no recommendation as to sentence, but during the course of this hearing upon questioning by the court, appellant admitted the prior conviction for stealing and thereupon the court ordered a presentence investigation.

On July 24, 1970, the appellant came up for judgment, sentence and commitment, and the court stated that the presentence investigation was 'very bad' and imposed the sentence complained of in appellant's motion.

On April 26, 1971, appellant appeared in the court below, with new court-appointed counsel, for a hearing on a Rule 27.26, V.A.M.R. motion which he had filed and which was apparently based upon substantially the same grounds as the present motion. Upon this occasion, appellant requested, and was granted, permission to withdraw his motion because he wanted to avoid the possibility of the first degree robbery charge being refiled. He stated 'We were promised no more than five years and maybe a parole' by his first court-appointed counsel. He further stated that he knew he 'wouldn't receive no parole' because of his past record. The following appears in the record:

'THE COURT: Well, what did you think the sentence was going to be after I ordered a presentence investigation?

'MR. McNEAL: No more than seven years--six years or five years. But I had a feeling I wouldn't get five years. I thought I would get six or seven years, a little bit more than Thomas, but I didn't think--'

At this hearing, the state's attorney said that if the Rule 27.26 motion was sustained, it was the intention of the state to file a first degree armed robbery charged against the appellant.

On August 28, 1972, the appellant filed pro se the present motion and an evidentiary hearing was held in the court below on November 3, 1972, the appellant appearing in person and by another (third) court-appointed counsel. The pertinent evidence adduced at this hearing may be summarized as follows:

The appellant testified that his counsel and he discussed the possibility of getting the charge reduced and the possible sentence he would receive on a guilty plea to the reduced charge. His counsel, after conferences with the prosecuting attorney, advised him that he could get the charge reduced to stealing over $50.00, if appellant would plead guilty, but that the prosecutor would not make any recommendation as to sentence. He stated that his counsel advised him that, 'We would get no more than five years and maybe a parole'; that he (counsel) had great doubt about probation because of his past record; that he asked counsel if he was sure that he would get no more than five years and was told 'don't worry about it, just leave it up to me'; that he would have to tell the judge that no promises had been made in order for the guilty plea to be accepted, and that he would not have pled guilty except for what he had been told by his counsel.

On cross-examination, the appellant stated that he knew he had no chance of parole; that he knew the judge would set the sentence; that the judge told him he could get up to 10 years, and that he had the right to a jury trial; that he did commit the crime charged and that he had withdrawn his first Rule 27.26 motion.

Appellant further stated in response to questions from the court that he had made the statement in the former hearing above quoted and then stated:

'What I meant when I made that statement is that was what was promised, five, but I didn't rely upon it, but (sic) I had been in trouble before. I thought maybe I would get a year more, six or seven, but I didn't think I would get nine.

Q (By the Court): You were promised five but you didn't rely upon the promise; you just thought that you were going to get a year or two more than Thomas did?

A Yes, in the sentence.' (Emphasis supplied)

Thomas, charged with the same offense and represented by the same court-appointed counsel, testified that at a joint conference, counsel had stated that the prosecutor had 'guaranteed' that they would get no more than five years.

The first court-appointed counsel involved in this matter testified as a state's witness at the hearing. The matter of attorney-client privilege was injected and in the colloquy that followed the then counsel for appellant stated to the court:

'Judge, the applicant is not attacking on behalf of Mr. (original counsel) or whether or not he was competent. * * * Mr. _ _ (original counsel) is not on trial here today. I think the Court's argument would be fine if there was an application concerning Mr. _ _ (original counsel).'

Upon a ruling by the court that the first counsel (charged with ineffective service) could testify, he related that he had thoroughly investigated the prosecutor's and police files and conducted an independent investigation; that appellant had told him of his involvement in the crime; that he had formed the unequivocal opinion that appellant would be found guilty of first degree robbery and so advised appellant; that he secured the agreement of the prosecutor to reduce the charge to stealing over $50.00, and was of the opinion that appellant should plead guilty to the reduced charge and so advised the appellant; that appellant agreed with his recommendation and...