Peterson v. State
| Decision Date | 14 July 1969 |
| Docket Number | No. 2,No. 54358,54358,2 |
| Parties | Albert Leroy PETERSON, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
John R. Moore, Platte City, Attorney at Law, for appellant.
John C. Danforth, Atty. Gen., Alfred C. Sikes, Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
On April 27, 1966, Albert Leroy Peterson (hereafter referred to as defendant) entered a plea of guilty to the charge of burglary second degree and stealing during the commission of the burglary. He was sentenced to imprisonment for ten years for each offense, the sentences to run concurrently. He subsequently filed a motion under Supreme Court Rules 27.25 and 27.26, V.A.M.R., in which he alleged that his court appointed counsel acted incompetently and treacherously against him, the sentence was excessive, and the guilty plea was not voluntarily and understandingly made. After an evidentiary hearing the trial court reduced the sentence for stealing to five years, directed that it run concurrently with the sentence of ten years for burglary, and overruled the motion in all other respects. Defendant has appealed.
The only contention on appeal is that the trial court erred in refusing to permit defendant to withdraw his plea of guilty because it was not freely and voluntarily made with an understanding of the nature of the charge.
At the time defendant appeared for arraignment he was represented by appointed counsel, Mr. David R. Clevenger, a former judge of the circuit court in which defendant's case was pending. The reading of the information and formal arraignment was waived. Counsel then advised the court, in the presence of defendant, that he had conferred with defendant and that defendant desired to enter a plea of guilty. Counsel stated that defendant 'frankly admits his guilt here, and also very frankly and freely has admitted to me that he has been on four other occasions guilty of infractions of the law.' Counsel then commented on the other offenses, and made a plea to the court for leniency. The court commented that it was not going to impose the maximum penalty 'because of the plea of your counsel,' and it asked counsel if there was any reason why sentence should not be imposed, and was told there was not. The court then asked defendant if he had any reason why sentence should not be imposed and he replied that he did not. The court then announced the sentence of ten years for burglary and ten years for stealing (subsequently corrected to five years) and directed that the sentences run concurrently and not consecutively. After pronouncing judgment the court commented to defendant: Defendant replied, 'I'll have plenty of time to think it over sir.' We note, however, that the court's admonition was not heeded because defendant testified at the hearing on the motion to withdraw his plea of guilty that while at the penitentiary he had been sentenced to additional imprisonment for three years for an attempted escape.
At the hearing on his motion defendant testified that his plea of guilty was 'coerced through (his) counsel's because he led defendant to believe that he would 'plead guilty for five years.' Defendant also testified that his counsel told him that he In the process of restating the substance of the above testimony, defendant testified that his counsel told him that he had investigated the case and defendant did not have 'much of a case' because he 'was supposed to have been caught inside the building by the police.' Defendant did not testify that this was not correct, and we note that the transcript contains two confessions signed by defendant in which he admits committing both the burglary and the stealing with which he was charged. Defendant also testified that his counsel told him that if he 'took (the case) to a jury trial, that they would probably file' under the habitual criminal act, and that although his counsel did not tell him that 'the habitual in this state carried a life sentence' he had the impression it did because that was true in New York and Kansas, and he had 'been in the penitentiary' and had 'heard other people talk about it.' He later testified that his counsel told him that if he was charged under the habitual criminal act he 'could be sentenced to fifteen or twenty years,' and that on the day of the trial his counsel came out of the judge's chambers and 'took (him) in there and told (him) that five years was still in effect if (he) wanted to take it,' and that if he did not he would have to 'lay in the county jail * * * five or six months, something like that.'
On cross-examination defendant admitted that he previously had pleaded guilty to four separate offenses, and that he had been told and he knew that under a guilty plea his attorney had no authority to bind the judge as to the sentence, and that he knew that when he entered his plea of guilty to burglary and stealing, but he was 'under the impression' that he would receive five years. In reply to questions by the court, defendant testified that he knew that only the court could determine the sentence, but that because of his 'cooperation and everything' he thought he would get 'a lighter sentence.' However, he admitted that he had not talked to either the court or the prosecuting attorney about it. Defendant also testified that the court had asked him if he knew the maximum sentence he could receive by pleading guilty, that he did know the maximum sentence, and that he persisted in his plea.
Defendant's father and mother also testified, the substance of which was that they had talked to defendant's counsel and were told by him that if defendant entered a plea of guilty his sentence would be from four to six years. His father also stated that he advised defendant to plead guilty because 'of his record, and he was caught right in the act,' but he stated that he did not tell defendant his counsel said he would receive four to six years.
At the conclusion of the evidence, defendant's...
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