Parker v. State, WD 31295.
| Decision Date | 03 November 1980 |
| Docket Number | No. WD 31295.,WD 31295. |
| Parties | Tony D. PARKER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Earl W. Brown, III, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
The appeal comes from the denial of a Rule 27.26 motion to set aside sentences on pleas of guilty to two counts of sale of a controlled substance. The motion contends that the pleas were not voluntary and, otherwise, that the sentences constituted multiple punishments for the same offense in violation of the Double Jeopardy Clause of the United States Constitution.
The pleas of guilty were entered to accomplish a bargain for the disposition of seven counts of heroin sale under three separate indictments for a composite term of fifteen years imprisonment. The punishment imposed was according to bargain. The movant does not seek to disrupt the bargain but contends, rather, that two of the counts of an indictment charged the same sale and so the sentences imposed-although made concurrent with other sentences-were multiple punishments for the same offense.
The movant was charged in Case No. CR 78-0114 with three counts of sale of heroin on April 25, 1977. The sentence was a five year term on each count to be served consecutively. The indictment in Case No. CR 78-0115 charged the movant with two counts of sale of heroin on May 24, 1977. The sentence was a five year term on each count. Count I was made to run concurrently with the sentences imposed in Case No. CR 78-0114 and Count II was made to run concurrently with the sentences imposed on Count I and in Case No. CR 78-0114. The indictment in Case No. CR 78-0492 charged the movant with two counts of sale of heroin on January 20 and January 24, 1978. The sentence was a five year term on each count. Count I was made to run concurrently with the sentences imposed in Case No. CR 78-0114 and Case No. CR 78-0115. Count II was made to run concurrently with the sentences imposed on Count I and in Case No. CR 78-0114 and in Case No. CR 78-0115. The movant seeks to be relieved from the judgment imposed on Count II of Case No. CR 78-0115 on the contention that the indictment duplicated one sale into two offenses and thus exposed him to unlawful prosecutions and punishments.
The point on appeal contends that the pleas to Count I and Count II of Case No. CR 78-0115 were without understanding of the charges because the conduct confessed by the defendant was in legal effect one offense and not two, so that the sentence imposed on Count II was merely a duplicate punishment for the sentence already imposed on Count I, a procedure rendered unlawful by the Double Jeopardy Clause of the United States Constitution.
The plea of guilty proceedings on the seven counts of the three indictments were conducted consecutively. The defendant made confession to three counts of heroin sale under CR 78-0114, and the inquiry then moved in numerical order to CR 78-0115:
The movant makes the essential complaint that the pleas to indictment CR 78-0115 were not informed because: he was not made aware of the nature of the charges and also that the court acted on the plea to Count II notwithstanding the absence of a basis in fact for that conviction. The plea procedures to the seven counts of the three indictments were conducted under then Rule 25.04. The advisement of that rule was that the court not accept a plea of guilty without determination that "the plea was made voluntarily with understanding of the nature of the charge." The rule prescribed no invariable procedure, but rendered a plea valid when accession to the offense was "in fact intelligently and voluntarily made." McMahon v. State, 569 S.W.2d 753, 7581-4 (Mo. banc 1978). The lack of express formulation by rule notwithstanding, the demands of due process require that a factual basis appear from the waiver of rights which culminates in conviction by a plea of guilty.1 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Jackson, 514 S.W.2d 638, 6415-7 (Mo.App.1974); Flood v. State, 476 S.W.2d 529, 5343-7 (Mo.1972). A plea of guilty made voluntarily and with understanding of the charge constitutes a conclusive admission of guilt Skelton v. State, 578 S.W.2d 323, 3252, 3 (Mo.App. 1979)-despite that he withholds actual confession to the acts charged as an offense. North Carolina v. Alford, 400 U.S. 25, 313, 4, 91 S.Ct. 160, 164-653, 4, 27 L.Ed.2d 162 (1970); Bounds v. State, 556 S.W.2d 497, 498 (Mo.App.1977).
The prosecution contends that on the principle of Alford, supra, "it is possible for a defendant to deny that he committed the crime but still to enter a plea of guilty." That does not make a relevant response to the postconviction motion: the movant does not attempt to avoid admission of guilt, but only that the conduct to which he confessed at the plea procedure constituted one offense only so that that the convictions on two counts were without factual basis. The rescript of the plea inquiry leaves doubt whether Parker received money from both Clark and Kramer. The postconviction proceeding does not resolve that inconclusive aspect of the proof.2 We assume, for decision, that the money consideration for the sale of the heroin was paid to Parker by both Clark and Kramer. We conclude, nevertheless, as a matter of law, that the conduct of the movant on May 24, 1977, factually constituted one transaction-and hence one offense, so that the imposition of two punishments for the single crime violated the Double Jeopardy Clause of the United States Constitution.
What constitutes a transaction by the self-evidence definition of the Act, therefore, depends upon what constitutes a sale. The essential offense under § 195.020 is the sale of narcotics by an unauthorized person: in gist, the elements of offense are simply a sale and a controlled substance. State v. Taylor, 375 S.W.2d 58, 627-10 (Mo.1964); Haynes v. State, 565 S.W.2d 191, 1921 (Mo.App.1978). The identity of the buyer is irrelevant to the offense. State v. Lemon, 504 S.W.2d 676, 6812 (Mo.App.1973). The existence of purchasers inheres in the term sale; therefore, whether the buyers be singular or plural does not affect the incidence of the offense. Haynes v. State, supra, 565 S.W.2d l.c. 1921; State v. Dyer, 582 S.W.2d 736, 737 (Mo.App.1979).
The cases cited by the prosecution, and those others which find multiple offenses from the sale or distribution of controlled substances to multiple recipients, all involve separate quantities of substances at separate times. That is, all involve separate transactions. In State v. Woodfin, 559 S.W.2d 273 (Mo.App.1977), the court upheld multiple offenses to two covert police buyers, but each offense was of a separate quantity of marihuana to the separate officers on separate-albeit almost simultaneously consecutive-occasions. In State v. Gordon, 536 S.W.2d 811 (Mo.App.1976), multiple offenses for distribution of drugs were...
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