Pines v. State, 55375

• Decision Date: 22 August 1989
• Docket Number: No. 55375,55375
• Parties: Charles PINES, Jr., Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 724

778 S.W.2d 724

Charles PINES, Jr., Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 55375.

Missouri Court of Appeals,

Eastern District,

En Banc.

Aug. 22, 1989.

Motion For Rehearing and/or Transfer to Supreme Court

Denied Oct. 10, 1989.

Application to Transfer Denied Nov. 14, 1989.

Dave Hemingway, St. Louis, for movant-appellant.

William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent-respondent.

REINHARD, Judge.

Movant appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion. We affirm.

Movant pled guilty to burglary in the first degree and attempted forcible rape and was sentenced to two consecutive five year prison terms.

Movant filed a pro se Rule 24.035 motion. Appointed counsel filed an amended motion which incorporated the allegations in movant's pro se motion. Movant alleged, inter alia, that his plea was induced by counsel's false assurance that he would receive concurrent, not consecutive, sentences. He further alleged that counsel instructed him to lie when asked by the court if any promises had been made to him. Movant's request for an evidentiary hearing was denied on the basis that his allegations were refuted by the transcript of the plea hearing.

On appeal, movant raises one point:

The motion court clearly erred in denying an evidentiary hearing for [movant's] claim that his attorney firmly assured him he would receive two concurrent five year terms and that she told him to tell the court he had received no other assurances. [Movant's] claim that his attorney, in effect, told him to lie in answering the court requires a hearing for the judge to make its findings of fact. By the nature of the allegation, the guilty plea transcript would not reliably reflect whether [counsel] had made false assurances to induce [movant's] guilty plea or whether she told him to lie when answering the trial court. [Movant's] fourteenth amendment due process rights require an evidentiary hearing.[ ¹

(Emphasis added.)

The record reveals that movant was charged as a prior and persistent offender; he pled guilty in 1982 to unlawful use of a weapon and in 1976 to assault with intent to do great bodily harm. At least one of the pleas resulted from plea bargaining.

At the plea hearing, movant was placed under oath and questioned. He testified he was 42 years of age and had gone to school until he was a sophomore in college. The prosecuting attorney then recited the state's evidence: Movant entered a building located at 1716 Union, which building was in the possession of two females; he did so for the purpose of committing a rape therein; he entered through a bathroom window, awoke one of the females, forcibly removed her underwear and attempted to have sexual intercourse with her without her consent; he was not married to her and she did not consent to any of the acts. Movant testified he did not disagree with any of these statements; nor does movant contend on appeal that he is not guilty of the charges.

Responding to questions from the judge, movant said he did not give his lawyer the names of any witnesses to contact, no threats or promises had been made to him in order to obtain the plea and no one told him to say anything but the truth during the proceeding. He said his attorney did everything he asked her to do and she informed him of the full range of punishment.

The following exchange took place between the court and prosecuting attorney:

Q. What is the State's recommendation on this matter?

A. As to Count I, Your Honor, five years; and as to Count II, five years, to run consecutively. For a total of ten.

The court then asked movant:

Q. And is that the recommendation your attorney told you the state would make if you entered this plea of guilty.

A. Yes, she informed me it would be so.

Our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 24.035(j); Chatman v. State, 766 S.W.2d 724, 725 (Mo.App.1989). To be entitled to an evidentiary hearing on a Rule 24.035 motion, the movant must allege facts, not conclusions, which, if true, would warrant relief; the allegations of fact must not be refuted by the record; and the matters complained of must have resulted in prejudice to the movant's defense. Id.

It is well settled that "a mere allegation that [a movant's] attorney told him to lie at his guilty plea hearing does not entitle [the] movant to an evidentiary hearing." LaRose v. State, 724 S.W.2d 339, 340 (Mo.App.1987); See also, Wade v. State, 698 S.W.2d 621, 623 (Mo.App.1985); Blade v. State, 558 S.W.2d 352, 355 (Mo.App.1977). Here, not only did movant testify that no promises had been made to him, but he also stated to the court that he had not been told to answer the court's questions other than truthfully. Furthermore, movant heard the prosecutor recommend consecutive sentences and he acknowledged that his attorney told him in advance that this would be the state's recommendation in exchange for his guilty plea. Thus, movant's allegations are refuted by the record and the motion court properly denied his motion without an evidentiary hearing.

Judgment affirmed.

SIMON, C.J., and SMITH, STEPHAN, CRIST, CRANDALL, KAROHL, GARY M. GAERTNER and GRIMM, JJ., concur.

CARL R. GAERTNER, J., dissents with separate opinion.

HAMILTON, J., concurs in Judge CARL R. GAERTNER's dissenting opinion.

PUDLOWSKI, J., concurs in dissenting opinion of CARL R. GAERTNER, Judge, and dissents in separate opinion.

CARL R. GAERTNER, Judge, dissenting.

I respectfully dissent.

In Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830, 835 (1941) the Supreme Court of the United States enunciated the mandatory rule that a habeas corpus petitioner, seeking to vacate and set aside his conviction after a guilty plea, may be denied an evidentiary hearing only where the allegations of his petition, even though they be improbable and unbelievable, are refuted by the court record or they show no cause for granting relief. Within four years Walker was referred to as a cause of the deluge of habeas corpus petitions filed in federal courts "not only as they should be to protect unfortunate persons against miscarriages of justice, but also as a device for harassing court, custodial and enforcement officers with a multiplicity of repetitious, meritless claims for relief." Dorsey v. Gill, 148 F.2d 857, 862 (D.C.Cir.1945) cert. den. 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003 (1945). An additional potential for abuse of the process was said to be "the prospect of substantial travel away from routine prison existence to attend a hearing at the place of conviction." Note, "The Freedom Writ--Expanded Use of Federal Habeas Corpus," 61 Harvard L.Rev. 657, 674 (1948).

In the four decades which have passed since these pronouncements abuses of post-conviction relief processes have not abated nor has the criticism and aversion directed toward post-conviction proceedings lessened. Nevertheless the rule enunciated in Walker continues in full force. It is recognized and incorporated in the Missouri Rules of Criminal Procedure relating to motions to vacate, set aside, or correct a sentence and judgment. Rules 24.035 and 29.15; Fields v. State, 572 S.W.2d 477, 481 (Mo. banc 1978).

Moreover, we have traditionally accepted the principle that the guilt or innocence of the prisoner seeking post-conviction relief is irrelevant. Fields, at 480; Webb v. State, 718 S.W.2d 619, 620 (Mo.App.1986). As stated by Chief Justice Chase in 1866, "The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice." Ex parte Milligan, 71 U.S. (4 Wall.) 2, 132, 18 L.Ed. 281, 299 (1866). Thus, unlike the purpose underlying pre-conviction criminal procedure rules, to protect the innocent and to convict the guilty, the ultimate goal of post-conviction relief procedures is to insure the pristine integrity of the administration of justice in criminal proceedings. "The public conscience must be satisfied that fairness dominates the administration of justice." Adams v. U.S., 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268, 274-75 (1942). In order to maintain this principle federal and state courts have tolerated substantial inflation of their dockets by post-conviction relief writs and motions, all but a minuscule few of which are found to be meritless and, indeed, the large majority of which are frivolous. That the process of post-conviction relief is susceptible to abuse cannot be denied. Nor can it be said that the delay in attaining finality of criminal convictions does not serve as an irritant to those within the criminal justice community and to the general public as well. These are the costs of assuring that the criminal justice system functions, in reality and in appearance, within an aura of fundamental fairness.

No wonder, then, that post-conviction relief proceedings are looked upon by many with disfavor and disdain. Nevertheless the importance of the principle underlying the need for such proceedings requires that judges resist the temptation to consider motions seeking post-conviction relief in a superficial, perfunctory manner, and, without close scrutiny of the record to insure refutation of any claim of denial of fundamental fairness, to summarily dismiss such motions without an evidentiary hearing.

Since 1927 the Supreme Court of the United States has recognized that a guilty plea induced by an attorney's misstatement about what sentence the court would impose was unfairly obtained and should be set aside. Kercheval v. U.S., 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In Santobello v. New York, 404 U.S. 257, 266, 92 S.Ct. 495, 501, 30 L.Ed.2d 427, 435 (1971) the court held that the prosecutor's failure to keep a promise made to induce a guilty plea...