Pedicord v. Swenson

• Citation: 304 F. Supp. 393
• Decision Date: 06 October 1969
• Docket Number: No. 1405.,1405.
• Parties: David Crockett PEDICORD, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

304 F. Supp. 393

David Crockett PEDICORD, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 1405.

United States District Court W. D. Missouri, C. D.

October 6, 1969.

Maurice J. O'Sullivan, Jr., Kansas City, Mo., for petitioner.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER GRANTING HABEAS CORPUS

JOHN W. OLIVER, District Judge.

I.

This habeas corpus case involves a state prisoner who is serving a mandatory life sentence in the Missouri penitentiary imposed in 1952 on a plea of guilty tendered after a five or ten minute consultation with appointed counsel. The Supreme Court of Missouri affirmed the trial court's denial of petitioner's Missouri Rule 27.26, V.A.M.R. postconviction motion in State v. Pedicord, Sup.Ct. of Mo., Div. 1, 1969, 437 S.W.2d 87. That court adversely decided on the merits the questions presented to this Court; hence, there is no question but that petitioner has exhausted his available State postconviction remedies.

As stated by the Supreme Court of Missouri, petitioner contended "(1) that failure of a magistrate to fully inform him of the charge on which he was arraigned and of the nature and purpose of a preliminary hearing and to provide counsel for him at that arraignment constituted a denial or infringement of his constitutional rights;" and "(2) that failure of the court-appointed attorney, the court, and the prosecuting attorney, preliminary to or at arraignment in the circuit court, to inform appellant of the nature and extent of the charge, including its relation to the `Habitual Criminal Act,' (3) that conferring with court-appointed attorney for five to ten minutes denied appellant sufficient time to consult and make the decision to plead and indicates inadequate representation by counsel, and (4) that failure of court-appointed attorney to inform of range of punishment on this plea of guilty under the `Habitual Criminal Act,' all constituted a denial and infringement of his constitutional rights."

Those same contentions are made in this case. Petitioner will be granted appropriate habeas corpus relief for the reasons we now state.

II.

The Supreme Court of Missouri decided petitioner's Missouri Rule 27.26 appeal without the benefit of appropriate trial court findings of fact and conclusions of law required by Missouri Rule 27.26(i).¹ See Crosswhite v. State, Mo. Sup.Ct., Div. 2, 1968, 426 S.W.2d 67, and State v. Stidham, Mo.Sup.Ct. en banc 1967, 415 S.W.2d 297.

In accordance with principles enunciated in Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), discussed in White v. Swenson, W.D.Mo. en banc 1966, 261 F.Supp. 42, 58, and Noble v. Swenson, W.D.Mo.1968, 285 F.Supp. 385, 386-387, this Court will defer to and accept all findings of fact reliably found by the Supreme Court of Missouri in its opinion affirming the trial court's denial of petitioner's Missouri Rule 27.26 motion. It cannot, of course, defer to general conclusory statements unsupported by any substantial evidence. See Goodwin v. Swenson, W.D.Mo.1968, 287 F.Supp. 166 at 168.

On April 1, 1952 one Paul A. Carter signed an "affidavit or complaint in felony case" in which it was stated that:

Upon the 31st day of March, 1952, one David Crockett Pedicord did then and there, with specific criminal intent, wilfully, unlawfully, and feloniously, upon one Paul E. Carter did make an assault with a dangerous and deadly weapon, to-wit, a long bladed knife, and one 1946 Dodge Sedan Automobile bearing Missouri license No. 410-055, of the reasonable value of Eight Hundred Dollars ($800.00), the property of the said Paul H. Carter, in the presence and against the will of the said Paul H. Carter, then and there being, by putting the said Paul H. Carter in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri.

On the same day a "warrant in felony case" was issued by Magistrate R. H. Bentley in which the same language used in the "affidavit or complaint" was repeated. The Sheriff of Chariton County, Missouri, was commanded by that warrant to "forthwith apprehend the said David Crockett Pedicord * * * and bring him immediately before the Judge of this court to answer the charge made in said information, and for preliminary hearing, and thereupon to be dealt with in accordance with law."

The record in the Magistrate Court for April 1, 1952 confirms that no information had then been filed which the petitioner could have answered as commanded by the warrant. The Magistrate Court record further states that only an "affidavit or complaint in felony case" had been filed, that a "warrant" had been issued.

On April 16, 1952, an information under the Missouri Second Offense Act, a charge not mentioned in the Magistrate Court proceedings, was filed in the Circuit Court of Chariton County, Missouri. After a five or ten minute conference with court appointed counsel, petitioner entered a plea of guilty. The trial court accepted that plea and imposed sentence. We defer to the Supreme Court of Missouri's finding that a conviction under the Missouri Second Offense Act "as it applied at the time of Pedicord's plea of guilty * * * made a life sentence mandatory" (437 S.W.2d at 91).

It is undisputed that petitioner was not represented by counsel until the day the information was filed and the day on which he was sentenced. One A. L. Freiz, now deceased, was that day appointed to represent the petitioner. He conferred with the petitioner in the jury room in the courthouse "not over five or ten minutes * * * at the most." The Supreme Court of Missouri noted that the petitioner testified "that no one informed him of the range of punishment" before his plea of guilty was tendered" (437 S.W.2d at 89).

In spite of an apparent acceptance of that undisputed testimony, the Supreme Court of Missouri nevertheless stated that there "was sufficient evidence upon which to find that appellant knew and understood the nature and extent of the charge and the range of punishment" (437 S.W.2d at 90). Quite inconsistently, however, that court added:

Appellant's real complaint is that he received a more severe sentence than he anticipated. * * * At best, his claim is that he did not anticipate that he might be sentenced to life imprisonment, but that alone is not a sufficient ground for setting aside such a sentence after the lapse of fifteen years. 437 S.W.2d at 90-91.

It would seem obvious that if petitioner in fact knew that the only sentence which the trial judge could lawfully impose on his plea of guilty was a mandatory life sentence, he could not possibly have "received a more severe sentence than he anticipated." Under that circumstance it would have been impossible for petitioner to have failed to "anticipate that he might be sentenced to life imprisonment." Had petitioner actually known the consequences of his guilty plea he could not have been surprised to receive the only sentence which the trial court could impose.

This Court therefore may not defer to the Supreme Court of Missouri's conclusion that petitioner "knew and understood the nature and extent of the charge and the range of punishment" (437 S.W.2d at 90) because there is no evidence in this record to support such a finding. We do defer to that court's finding that petitioner testified that "no one informed him of the range of punishment."²

III.

All courts, including this one, are required to apply federal standards to petitioner's claim of ineffective assistance of counsel and to his claim that his plea of guilty was not voluntarily tendered. We find and determine that petitioner is entitled to habeas relief in regard to both those claims.

We have found that petitioner was not in fact advised of the consequences of his plea of guilty. We conclude that a plea tendered without such knowledge cannot be said to be voluntary. It was over forty years ago that Mr. Justice Butler stated for a unanimous court in Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927) that:

A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.

In Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), the Supreme Court unanimously reversed the Supreme Court of Pennsylvania's dismissal of a habeas corpus proceeding which sought to present the question of whether the petitioner's plea of guilty, accepted eight years earlier, had been involuntary and because he had not been advised of his right to counsel. Without dissent, the Supreme Court of the United States rejected Pennsylvania's contention that, under the Due Process Clause of the Fourteenth Amendment, the "petitioner had no constitutional right to be informed by the court or prosecuting attorney * * * of the severity of the sentences which might be imposed against him" (350 U.S. at 120, 76 S.Ct. at 225).

In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the Supreme Court reversed the Sixth Circuit which had affirmed the District Court's denial of a Section 2255 motion in which the movant alleged a violation of Federal Criminal Rule 11. The principle from Kercheval quoted above was quoted by Mr. Justice Stewart in support of the determination that:

There can be no doubt that, if the allegations contained in the petitioner's motion and affidavit are true, he is entitled

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