Mooney v. State

• Decision Date: 12 November 1968
• Docket Number: No. 53717,No. 2,53717,2
• Citation: Mooney v. State, 433 S.W.2d 542 (Mo. 1968)
• Parties: Patrick Lee MOONEY, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 542

433 S.W.2d 542

Patrick Lee MOONEY, Appellant, v. STATE of Missouri, Respondent.

No. 53717.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Richard D. Mills, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., William L. Culver, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

On October 12, 1961, on the advice of counsel Patrick Lee Mooney entered a plea of guilty to three separate charges of robbery first degree by means of a dangerous and deadly weapon, and was sentenced to ten years in the Department of Corrections on each charge, all to be served concurrently. Six years later appellant filed a motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate the sentences, and alleged as grounds therefor that he was 'illegally arrested' and that he was 'denied counsel at arrest.' Numerous cases and statutory and constitutional provisions were cited in the motion, many of which had no relation to the asserted issues. There was no specific allegation in the motion as a basis for vacating the sentences that the pleas of guilty were not voluntarily and understandingly made. However, at the hearing on the motion the evidence offered by appellant was directed to that contention. The court ruled adversely to appellant's contention and he has appealed. The only point in his brief to this court is that the denial of his motion 'constituted an abuse of discretion in view of record that failed to reveal that the court determined that the plea was made voluntarily which caused said defendant to waive his constitutional right to trial by jury thereby prejudicing the defendant.' We shall, as did the trial court, treat the motion as presenting the issue of whether pursuant to Supreme Court Rule 27.25, V.A.M.R., appellant is now entitled after sentence to withdraw his pleas of guilty and have the judgments of conviction set aside 'to correct manifest injustice.'

At the hearing on the motion a transcript had been prepared of the proceedings at the time the pleas of guilty were made by defendant and accepted by the court. However, that transcript was not offered in evidence and is not before us. In making some remarks concerning the proceedings at the time the pleas were received, the court read from and commented on that transcript as follows:

'The Court: Mr. Mooney, our transcript of the brief proceedings of October 12th shows that when you were brought into court, I asked counsel for the State if there was any change in the charges, and the record should show that previous to that date the State had filed an amended information in case 1305--J and alleged in that amended information that you had been convicted in the Circuit Court of Crawford County at Steeleville, Missouri, on February 27, 1956, of the offense of burglary in the second degree and had been sentenced by that court to imprisonment in the intermediate reformatory for a term of two years and were imprisoned on May 4, 1956, in that reformatory and were granted a parole on January 4, 1957, so the State had made the charge of a prior conviction. Incidentally, was that correct that the conviction was in Steeleville in Crawford County?

'The Witness: Yes.

'The Court: And it was in February, 1956?

'The Witness: Yes, sir.

'The Court: And you got a two year sentence for burglary?

'The Witness: Yes, sir.

'The Court: Now, Mr. O' Rourke, answering the Court's question as to whether the charges would be changed said, 'No, the charges remain the same, your Honor, prior conviction and robbery in the first degree by means of a dangerous and deadly weapon.' Now, do you remember Mr. Knoskay then saying, 'Your honor, defendant withdraws his former plea of not guilty and enters a plea of guilty.' Do you remember him saying that?

'The Witness: Yes, sir.

'The Court: Then I spoke to you, the record shows that I said, 'I want to make certain on the record that that is right. Did you authorize Mr. Knoskay to make that statement, and do you now wish to plead guilty to all three of the robberies?' And that you then answered, 'yes.' Do you remember that?

'The Witness: Yes, sir.

'The Court: After that, Mr. O' Rourke told me about the three separate holdups and the amounts taken, then I asked about the prior conviction and he answered that question. I asked if there were any before that and he said no and he gave me his recommendation and then I pronounced sentence.'

Supreme Court Rule, 25.04, V.A.M.R., provides that 'The Court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.' This duty is imposed on the court even though the accused is represented by counsel. State v. Blaylock, Mo., 394 S.W.2d 364. The record before this court does not affirmatively demonstrate that the investigation made by the trial court prior to accepting the pleas of guilty was as broad and as inclusive as contemplated by Rule 25.04. However, a subsequent disclosure that the record made at the time the pleas of guilty were entered does not demonstrate a substantial compliance with Rule 25.04 does not necessarily require, upon application, that the pleas of guilty be set aside. State v. Mountjoy, Mo., 420 S.W.2d 316, 323. A defendant may not, after sentence, by reason of Rule 25.04 withdraw his plea of guilty as a matter of right, State v. Skaggs, Mo., 248 S.W.2d...