Porter v. State, 57532
| Decision Date | 14 January 1974 |
| Docket Number | No. 1,No. 57532,57532,1 |
| Citation | 504 S.W.2d 30 |
| Parties | David PORTER, Jr., Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
John Z. Williams, Rolla, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Movant-appellant David Porter, Jr., appeals from the judgment denying postconviction relief sought under Rule 27.26, V.A.M.R. Appellant was convicted of a felony under Sec. 561.450, RSMo 1969, V.A.M.S., and the appeal was filed prior to January 1, 1972. This court has jurisdiction. Art. V, Sec. 31(4), Mo.Const., as amended, V.A.M.S.
On June 26, 1971, appellant, his wife Cecilia Porter, and David O'Neal, Jr., were arrested and taken to the Rolla city jail in Phelps County, Missouri, where they were detained. On June 28, 1971, an officer of the First State Bank of Rolla filed a complaint for the state warrant charging that all three persons wilfully and with intent to defraud cashed a stolen money order in the amount of $100 on June 26, 1971. The warrant was issued and on the same day, June 28, 1971, the three persons charged appeared in magistrate court at which time they requested 'time to consult' and the preliminary hearing was set for July 14, 1971. Bond was set at $5,000 which the defendants failed to make and were therefore recommitted to jail.
The record of the magistrate court proceedings reflects that defendants, David Porter, Jr., a/k/a Willie Everett Keys, and John X. (David) O'Neal, Jr., again appeared in magistrate court on July 7, 1971, for preliminary hearing. Defendants informed the magistrate they were unable to employ an attorney so the court appointed Jay White to represent them. The record further states that 'on the same day came the defendants in person and by their court appointed attorney, Jay White and waived their preliminary hearing.' The court bound the two defendants over for the October term of the circuit court of Phelps County and recommitted them to jail for failure to tender their bonds.
On July 8, 1971, Zane White, the prosecuting attorney of Phelps County, filed a two-count information against Porter and O'Neal charging each with two offenses under Sec. 561.450, RSMo 1969, V.A.M.S. (wilfully cashing a stolen money order in the amount of $100, knowing the same to be stolen, etc.).
Also on July 8, 1971, appellant appeared in circuit court with his attorney Jay White and pled guilty to one count of the information. The transcript of the guilty plea proceedings is as follows:
What do you recommend?
Mr. Porter, do you have any legal reason to give why judgment should not now be pronounced against you?
By the judgment of this Court you are committed to the State Department of Corrections at Jefferson City, Missouri for a term of five years, unless you be sooner discharged according to law.
'Judgment and Sentence.'
Q (by Mr. Z. White) Now, you've pled guilty to charge of cashing a stolen or bogus money order at the First State Bank. Were you threatened or coerced in any way to plead guilty?
A No.
Q What was your answer? A No.
Q Now, do you remember cashing such a money order at the First State Bank?
A Yes.
Q And is that why you pled guilty, because you were, because you had done that? A Yes.
On August 27, 1971, appellant filed a pro se motion to vacate the judgment and sentence pursuant to Rule 27.26. Counsel was appointed for appellant and on November 5, 1971, an amended motion was filed. Appellant asserted that he was not represented by counsel at the preliminary hearing; that he was represented by appointed counsel at the guilty plea proceedings and sentencing. He alleged that his plea of guilty was involuntary in that he was led to believe that he had no defense to the charge; that because he was a negro and nonresident of Phelps County he could not have favorable consideration from a jury in that county; that he was coerced into pleading guilty by threats made by the prosecuting attorney that unless he pleaded guilty his wife would be charged with a felony; that his wife was constantly harassed during confinement in the Rolla city jail and that such harassment was used by the prosecutor to coerce appellant into pleading guilty; that appellant was denied effective assistance of counsel in that counsel failed to make a complete investigation of the case before advising appellant to plead guilty and did not advise appellant of the requirement of probable cause for the search of appellant's car whereby inadmissible evidence was obtained.
An evidentiary hearing was held on November 19, 1971. Appellant testified to conversations he had with the prosecutor between the date of his arrest through July 7, 1971; that on July 7, 1971, appellant, his wife, and O'Neal, appeared in magistrate court for preliminary hearing; that he had no lawyer and the court appointed Jay White but that Jay White could not be located that day and did not appear in court; that appellant did not see or speak to Jay White until twenty minutes to one hour before the guilty plea the next day, July 8, 1971; that appellant did not waive the preliminary hearing; that he did not employ Jay White as his attorney; that if he did not accept the five-year sentence the prosecutor would make up a case on appellant's wife and send her to the penitentiary, and would not let her out on bond until appellant agreed to plead guilty. Appellant gave additional testimony concerning harassment of his wife in jail, the boasting of the prosecutor about never losing a case to a negro, and other matters.
Mr. Jay White testified that he had been appointed by the magistrate court to represent appellant but that he did not recall appearing in magistrate court on July 7, 1971, the day before the guilty plea was entered, and waiving the preliminary hearing; that he did not recall if he spoke with appellant before July 8, 1971; that he did converse with appellant, his wife, and parents, and told them he had been appointed to represent appellant and would do so free of charge, but that if appellant had money and was able to pay he could do so; that a one-hundred-dollar fee was agreed to between Jay White and appellant, but it was never paid because the money found on appell...
To continue reading
Request your trial
-
Forbes v. State, KCD
...with directions to enter adequate findings of fact and conclusions of law as a prerequisite to further appellate review. Porter v. State, 504 S.W.2d 30 (Mo.1974); State v. McCullough, 493 S.W.2d 353 (Mo.App.1973). The only cases in which remand has not been required are those where movant o......
-
Allen v. State, 12458
...and conclusions of law responsive to the issues; and to determine from the evidence if appellant is entitled to any relief. Porter v. State, 504 S.W.2d 30 (Mo.1974). BILLINGS, P. J., and TITUS, HOGAN, FLANIGAN and PREWITT, JJ., ...
-
Mikel v. State
...of law on all issues presented . . .' A remarkable similarity will be noted between the order in this case and that made in Porter v. State, 504 S.W.2d 30 (Mo.1974) and State v. McCullough, 493 S.W.2d 353 (Mo.App.1973). In both Porter and McCullough the court held findings of fact had not b......
-
Fowler v. State, 41102
...that "movant did have effective assistance of counsel at the time said plea was entered" was held to be insufficient in Porter v. State, 504 S.W.2d 30, 33 (Mo.1974).2 No error was committed by the trial court in not making findings concerning the allegations of bias and conspiracy. The mova......