O'Neil v. State, 57595
| Decision Date | 10 December 1973 |
| Docket Number | No. 2,No. 57595,57595,2 |
| Citation | 502 S.W.2d 342 |
| Parties | David O'NEIL, Jr., Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Charles T. Smallwood, Rolla, for appellant.
John C. Danforth, Atty. Gen., Daniel Parker Card, II, Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
David O'Neil, Jr. entered a plea of guilty of operating a confidence game in violation of § 561.450 RSMo 1969, V.A.M.S., and was sentenced to imprisonment for a term of five years. He thereafter filed a motion pursuant to Rules 27.25 and 27.26 V.A.M.R. to set aside the judgment and sentence and to be permitted to withdraw his plea of guilty. By notice filed prior to January 1, 1972, he has appealed from the judgment overruling his motion. We affirm.
In his motion appellant alleged that his plea of guilty was involuntary and that he was denied effective assistance of counsel. By his points in his brief he asserts the trial court erred in ruling against him as to each contention because 'such finding was against the weight of the evidence.' Strictly speaking, these points present nothing for appellate review because this court does not weigh the evidence, but in its review it is limited to the determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Evans v. State, 477 S.W.2d 94 (Mo.1972); Mace v. State, 452 S.W.2d 130 (Mo.1970). However, we shall examine each contention and rule the issue within our scope of review.
The transcript of the record made at the time appellant entered his plea of guilty shows that he appeared in court with counsel and waived formal arraignment. In response to questions by the court appellant stated that his counsel had explained to him the charge, and had also advised him that he was entitled to a jury trial at which, if found guilty, the jury would determine the punishment. He acknowledged that his counsel had explained to him the range of permissible punishment, and he stated that no threats or promises had been made which would cause him to want to plead guilty, and that he had not been persuaded to plead guilty against his will, but that he was pleading guilty to the charge because 'I'm guilty,'.
At the hearing on the motion appellant testified that after he was arrested he talked to the prosecuting attorney who told him that 'it would be best' to plead guilty because he was a Negro and he 'wouldn't be able to have a fair trial' in that county. He further stated that the prosecutor told him that if he made bond on the pending charge additional charges would be filed against him, and as a result of this he 'couldn't think of any other way but to plead guilty,' and he 'didn't feel as though (he) had any other choice.' He further testified that he did not discuss his case with his counsel, and that there was no discussion with counsel concerning his 'chances at trial.'
Appellant's mother testified that she talked to the prosecuting attorney and was told by him that he had never lost a case in that county involving a Negro, and that appellant could not have a fair trial. However, after talking to the prosecuting attorney she did not again talk to appellant, and she did not tell appellant of her conversation with the prosecutor. Lawrence Wells, a friend of appellant, testified substantially the same as appellant's mother, but he stated that at the time he talked to the prosecutor, appellant had already decided to plead guilty.
The prosecuting attorney testified that he explained the charges to appellant, and that although the 'race question' was brought up, he 'did not state things in the way which it's been couched and inferred to me saying.' There was no further elaboration on this issue.
Appellant's attorney testified that he conferred with appellant and also with a person by the name of Porter, who was charged with appellant, and that 'they knew what they wanted to do before I started talking to them.' He also stated that as a result of his conversations with appellant and the prosecutor 'we came to an agreement, made a bargain and carried it out.' He also testified that he questioned appellant concerning his education and determined that he was intelligent and that he 'knew what he was doing.'
The trial court, in its findings of facts and conclusions of law, reviewed the record of what occurred at the time the plea of guilty was entered and also the testimony at the hearing on the motion, and held that appellant's plea of...
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