Miller v. State, KCD26142

• Decision Date: 23 July 1973
• Docket Number: No. KCD26142,KCD26142
• Parties: Paul D. MILLER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 79

498 S.W.2d 79

Paul D. MILLER, Appellant, v. STATE of Missouri, Respondent.

No. KCD26142.

Missouri Court of Appeals, Kansas City District.

July 23, 1973.

Ronald P. Zolotor, Excelsior Springs, David Lee Wells, North Kansas City, for appellant.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for respondent.

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

SHANGLER, Judge.

The appeal is from an order denying a Rule 27.26, V.A.M.R. motion to vacate a judgment of conviction on a plea of guilty to robbery and to set aside a thirty year sentence entered on the judgment.

The initial Rule 27.26 motion, brought pro se, and the amendments of court appointed counsel alleged a number of constitutional and statutory defects against the judgment. On this appeal, the points preserved for decision assert (1) the plea of guilty was involuntary, (2) appellant did not have effective assistance of counsel, (3) appellant was suffering from a mental disease or defect and did not understand the nature of the proceedings against him, (4) appellant was improperly sentenced in that no record was made of the proceedings and (5) the trial court neither entered a finding, as required by statute, nor determined by hearing, as required by due process, that appellant was fit to proceed to plead guilty to the offense. After an evidentiary hearing, all issues on the Rule 27.26 motion were adjudicated against appellant. The judge who adjudicated the post-conviction motion did not preside at the plea proceedings.

Appellant was charged with the robbery of items of jewelry from the person of a female at her place of employment. Appellant accomplished his criminal purpose by first battering the victim into submission and then throttling her with her own stocking. Appellant was arrested nearby and made a prompt confession of guilt to the officers. Counsel was appointed on his behalf but after several months appellant replaced him by the retained counsel whose performance he now complains was ineffective. While still represented by appointed counsel, appellant had written the prosecuting attorney offering to plead guilty to the charge and expressing a willingness to accept a sentence of from 30 to 50 years' imprisonment on condition that the execution of the sentence be suspended and a five year probation be granted. This overture went without apparent response.

Retained counsel assumed the defense. After consultation with appellant and his parents, a review of the predecessor attorney's file, the prosecutor's jacket which contained statements of the witnesses and arrest reports, the court's file, and having expressed to appellant the serious disadvantage resulting from his admission of guilt, retained counsel concluded that the only feasible defense was that of mental disease or defect excluding responsibility. Accordingly, counsel made formal motion for psychiatric examination of appellant under the provisions of Chapter 552, RSMo 1969, V.A.M.S., to determine whether appellant, at the time of the conduct alleged in the Information, was suffering from a mental disease or defect excluding responsibility, and to determine also whether appellant was competent to understand the nature of the proceedings against him and to assist counsel in his defense. The motion for mental examination was asserted on counsel's information and belief--based upon his own investigation and observations, as well as his knowledge of a prior psychiatric examination of his client during a rape prosecution--that appellant was incompetent. The report from the Missouri Mental Health Center at Fulton, where the examination was conducted, certified that appellant was not suffering from a mental disease or defect within the meaning of § 552.010, that he had the capacity to understand the proceedings against him and to assist in his own defense and that, at the time of the alleged robbery, appellant knew and appreciated the nature, quality and wrongfulness of his conduct and was capable of conforming his conduct to the requirements of law. In short, it was an opinion that appellant was competent to stand prosecution and conviction for the crime.

A copy of the report was furnished to retained counsel who discussed and the findings with appellant's parents and, seemingly, with appellant also. Counsel probed with the parents the possibility of obtaining an independent psychiatric examination of the appellant for the purpose of furthering the defense of mental disease or defect excluding responsibility, but they could not afford the cost. This resulted in the abandonment of the defense. As counsel put it at the Rule 27.26 hearing: 'I knew that to establish that defense you need some medical proof either from Fulton or from an independent psychiatrist. Fulton turned us flat down, and we did not have sufficient funds or think it advisable to get a private physician, and therefore it was no defense because we couldn't prove it'. (Actually counsel neither pleaded the defense of mental disease or defect excluding responsibility nor gave the written notice of his purpose to rely on the defense required by § 552.030(2).) With the case in this posture, counsel advised appellant that a guilty plea would bring a less severe punishment than conviction by a jury. The court accepted the plea of guilty and, at the request of counsel, ordered a pre-sentence investigation.

Appellant's argument makes it clear that his contentions of involuntariness of plea of guilty and ineffective assistance of counsel subsume the remaining three grounds asserted for relief so to the extent that our disposition of the appeal requires that they be treated at all, they will be considered together.

A plea of guilty is a confession in open court, but it is more than merely an admission of past conduct; it is also a conviction. Boykin v. Alabama, 395 U.S. 238, 243(17--11), 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). As such it should be received with caution and only if freely and voluntarily made with understanding of the nature of the charge. Pulliam v. State, 480 S.W.2d 896, 903(2) (Mo.1972); Rule 25.04. A plea of guilty involves waiver of constitutional rights, among them, the right against compulsory self-incrimination, right to trial by jury and the right to confront one's accusers, and thus presupposes a criminal defendant with the capacity to intelligently and knowingly adopt a waiver. Brady v. United States, 397 U.S. 742, 748(5--8), 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). An accused is competent to plead guilty or otherwise fit to proceed in a criminal prosecution if, at the time, he has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . has a rational as well as factual understanding of the proceedings against him.' Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Brown v. State, 485 S.W.2d 424, 429(5, 6) (Mo.1972). And a conviction of an accused, legally incompetent, violates due process. Pate v. Robinson, 383 U.S. 375, 377, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

The argument which pervades appellant's contentions of involuntariness of plea of guilty and ineffectiveness of counsel is that at the time of the plea, appellant lacked the capacity to understand the proceedings against him or assist in his own defense, and therefore was unfit to proceed. Appellant's competency to stand trial was submitted for psychiatric determination under the procedures of § 552.020, subsection 6 of which provides in relevant part:

If neither the state nor the accused nor his counsel contests the opinion referred to in subsection 3, subdivision (3), of this section relative to fitness to proceed, the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested the court shall hold a hearing on the issue.

§ 552.020 reflects the basic common law value that, as a matter of public conscience and judicial decorum, an accused who lacks mental capacity to understand the proceedings against him or to act rationally in his own defense, may not be submitted to criminal prosecution. The United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) invested § 552.020 with the new dimension, of constitutional proportion, that where the circumstances at a criminal trial create doubt of an accused's fitness to proceed, due process of law requires that the trial court conduct a hearing on the question, whether requested or not. ¹ McCormick v. State, 463 S.W.2d 789, 790 (Mo.1971).

The report of psychiatric examination which certified that appellant was fit to proceed was not contested by either the state, the accused or his counsel. And it is clear that prior to the entry of the guilty plea, the sentencing court did not make a determination and finding of record on the basis of the report, as required by § 552.020(6), that appellant was fit to proceed. Appellant contends that absent such an express finding of record, his plea of guilty was involuntary and, further, that the court's failure, sua sponte, to order a hearing on the issue of his fitness to proceed, when reasonable cause appeared, was a denial of due process of law. Appellant contends also, counsel's failure to contest the report, and thus mandate a hearing, amounted to ineffective assistance and nullified the plea procedure. The first contention is answered quite simply. The motion for order for mental examination was filed December 1, 1970 and was promptly allowed. The certificate of examination from the Missouri Mental Health Center at Fulton issued on January 13, 1971 and without contest became part of the record of the proceeding. The court's docket entry of March 8, 1971 setting the cause for trial on April 5, 1971 was equivalent to an approval of the report and a determination by the court that de...