Pippenger v. State, 17012
| Decision Date | 29 August 1990 |
| Docket Number | No. 17012,17012 |
| Parties | Mark Everett PIPPENGER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, for movant-appellant.
William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent.
Movant 1 pled guilty to a charge of failure to appear. He received a 5-year sentence to run concurrently to a 20-year sentence on a conviction for rape. 2 Movant now appeals from an order denying post-conviction relief under former Rule 27.26 3 on his failure to appear conviction.
Movant's motion was originally filed pro se December 28, 1984. His initial grounds for seeking relief were that: (a) the guilty plea was involuntary because it was an "equivocal plea"; (b) movant was misadvised and misled concerning service of the additional consecutive sentence; and (c) a conviction and sentence for "Failure to Appear" cannot constitutionally and legally be imposed to run consecutive to the original conviction. On May 4, 1987, an amended 27.26 motion was filed which incorporated the initial pro se motion allegations. It further alleged that movant's plea was not voluntary but resulted from improper coercion and duress placed upon movant by his plea counsel. A second amended 27.26 motion was filed December 6, 1988. The second amended motion did not include or incorporate any of the allegations contained in the original pro se motion or in the first amended motion. The second amended motion alleged: (a) The court lacked jurisdiction to set a trial or to hear the charges against movant at any time because the rape statute set forth in the original complaint, the amended complaint and the original information had been repealed by the Missouri Legislature prior to any alleged acts of movant; (b) Counsel was ineffective in the rape case for failing to attempt to quash the complaints and information; (c) Counsel was ineffective for failure to file motions attacking the court's jurisdiction in the rape case; and (d) Counsel was ineffective for failure to file motions attacking the court's jurisdiction in the failure to appear case based on the alleged lack of jurisdiction in the rape case. Finally, a third amended motion was filed on May 22, 1989, making a further claim that the rape statute was unconstitutional which deprived the court of jurisdiction in the rape case and in the failure to appear case. The State's motion to dismiss the various motions filed by movant was sustained by the motion court.
Review of a Rule 27.26 motion is a limited one. "Appellate review shall be limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." Rule 27.26(j); Mallett v. State, 769 S.W.2d 77, 79 (Mo. banc 1989), cert. denied, 494 U.S. 1009, 110 S.Ct. 1308, 108 L.Ed.2d 484 (1990). The motion court's findings, conclusions, and order are clearly erroneous only if a review of the record leaves the appellate court with a definite and firm belief that a mistake has been made. Ghan v. State, 771 S.W.2d 833, 834 (Mo.banc 1989); O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). In order to be entitled to an evidentiary hearing, the movant must (1) allege facts, not conclusions, which, if true, would warrant relief; (2) these facts must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant's defense. Pine v. State, 788 S.W.2d 794, 795 (Mo.App.1990); Boggs v. State, 742 S.W.2d 591, 594 (Mo.App.1987); Thomas v. State, 736 S.W.2d 518, 519 (Mo.App.1987). "A motion to vacate under Rule 27.26 which contains mere conclusional allegations and sets out no facts which, if true, would authorize relief, does not warrant an evidentiary hearing." Boggs v. State, supra, at 594, citing State v. Lillibridge, 399 S.W.2d 25, 28 (Mo.1966), cert. denied, 384 U.S. 956, 86 S.Ct. 1579, 16 L.Ed.2d 551 (1966).
In Point I, movant claims there was an insufficient factual basis for his plea thereby rendering his plea involuntary in that he denied he had committed the act 4 willfully as required by § 544.665. This is the same allegation made by movant in his pro se and first amended motions when he claimed that his guilty plea was equivocal. 5 The motion court took judicial notice of file CR383-209-FX-2 (forcible rape conviction) and file CR383-604-FX-4 (failure to appear). 6 This included the transcript of movant's guilty plea in the failure to appear case. In its finding and judgment, the motion court determined that movant's allegation that his guilty plea to failure to appear was "equivocal," was refuted by the record and ruled that point against movant. This court does not find that determination by the motion court to be clearly erroneous. In Point I, movant points to the following exchange at the time of his plea as support for his claim that his plea was equivocal:
THE COURT: You understand, do you, that in this case the State is charging that on or about December 5, 1983, in Greene County, while you were released on bond in the rape case, you wilfully failed to appear, do you understand that's the charge?
MR. PIPPINGER [sic]: (No response.)
THE COURT: You failed to appear in the rape case.
MR. PIPPINGER [sic]: I failed to appear, yes, sir. I wouldn't go so far to say at the time it was willfull. I was under a lot of stress. There was a reason behind it. I'm not trying to deny that I was not here, but there was a reason why I left.
MR. PIPPINGER [sic]: Yes, sir.
THE COURT: And they have to prove not only that you failed to appear, but they have to prove beyond a reasonable doubt that you willfully failed to appear for this rape trial, do you understand that?
MR. PIPPINGER [sic]: Yes, sir.
From the above, movant argues that "[n]othing in the guilty plea transcript reflects that appellant indeed committed the charged act willfully." That argument ignores substantial additional testimony in the plea transcript. After movant again conferred with his defense attorney, he was asked:
THE COURT: ... Have you had time to confer as fully as you want to now, Mr. Pippinger [sic].
MR. PIPPINGER [sic]: Yes, Your Honor.
Additional pertinent inquiry into the factual basis for movant's plea is as follows:
THE COURT: Do you understand that the law presumes you're innocent of this offense until and unless you plead guilty or you have a trial and you're found guilty by a jury beyond a reasonable doubt, do you understand?
MR. PIPPINGER [sic]: Yes, sir.
THE COURT: Do you have any question on what you're charged with?
MR. PIPPINGER [sic]: Not at all, sir.
THE COURT: Are you ready to plead guilty to this willfully failing to appear?
MR. PIPPINGER [sic]: Yes.
THE COURT: Okay. Do you understand if you have a trial, which of course you're entitled to, one of the things the jury would have to determine would be whether you willfully failed to appear, whether it was willful, do you understand that?
MR. PIPPINGER [sic]: Yes, sir.
MR. PIPPINGER [sic]: He's done a fine job, sir.
MR. PIPPINGER [sic]: Yes, sir.
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...veracity of the charges against him; all that is required is that the plea be knowing and voluntary." Id. (quoting Pippenger v. State, 794 S.W.2d 717, 721 (Mo.App.1990)). "[A] guilty plea is not involuntary even where the accused maintains innocence, so long as the plea represents a volunta......
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