Rayford v. State

• Decision Date: 31 December 1973
• Docket Number: No. KCD,KCD
• Citation: 504 S.W.2d 285
• Parties: Kenneth Gregory RAYFORD, Appellant, v. STATE of Missouri, Respondent. 26290.
• Court: Missouri Court of Appeals

Page 285

504 S.W.2d 285

Kenneth Gregory RAYFORD, Appellant, v. STATE of Missouri, Respondent.

No. KCD 26290.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1973.

Sloan R. Wilson, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Mark D. Mittleman, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.

PRITCHARD, Judge.

Upon his plea of guilty entered on January 17, 1970, appellant was sentenced to thirty years imprisonment in the Department of Corrections for the offense of murder in the second degree. He now seeks post conviction relief under Rule 27.26, V.A.M.R. to withdraw his plea of guilty under the provisions of Rule 27.25: 'A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.'

Appellant's supplemental oral motion (Point VI here) made during the hearing under Rule 27.26 was to the effect that the statement of appellant made to the court at the time the plea of guilty was entered revealed that there were facts, 'which if true, would leave the Court or possibly a jury, depending on who it was tried before, to find that the defendant had in fact a justifiable defense of self defense. And under those circumstances stated to the Court by the defendant, the defendant renews his vocalized plea to stand trial for first degree murder.' The transcript of the record made at the time of the plea does indeed indicate that self defense could have been interposed: 'THE COURT: Now, the Information charges that you took the life of one William Robert Medina on July 25, 1969. You are telling the Court that you did kill William Robert Medina? THE DEFENDANT: Yes, sir. THE COURT: You did that with a revolver? THE DEFENDANT : Yes, sir. THE COURT: Do you have any questions, Mr. Peak, that you would like to add? MR. PEAK: Why did you kill Mr. Medina? THE DEFENDANT: Presently I was staying at Thirty-First and Benton, and William Medina came over and had jumped on my girl friend, and like that, so I goes over to his house to ask him about that, and when I get over there he sees me at the window, and he is laying down on the couch when I walk in, and when I get ready to ask him a question he pulls a pistol, and he fires at me, and I fired back at him, and he got hit, and I ran, and so that is what happened. THE COURT: Very well. The court finds that this defendant knowingly and voluntarily and intelligently enters his plea of guilty and it is therefore received.' Upon request of appellant's counsel a presentence investigation was ordered, and the state asked leave to dismiss another case (C--38832) 'in lieu of the plea in C--38962' (the latter case is the one in which the charge of murder in the first degree was reduced to murder in the second degree).

Other matters which were developed at the time appellant's plea was taken are these: His counsel told the court that appellant indicated he wanted to enter a plea of guilty to the reduced charge of second degree murder. Appellant stated that he understood that then he was charged with second degree murder, and that he had indicated to counsel that he wanted to enter a plea of guilty to that charge. Appellant was 19 years old; he had advanced in education to the 10th grade; he could read, write and understand the English language; he realized that the court would assess his punishment which would range from 10 years to life in prison; he recognized that Mr. Sundeen was his lawyer and that he was entitled to a speedy trial with the aid of counsel if he so desired, and that Mr. Sundeen was willing to represent him in a jury trial if he so desired. Appellant stated he wanted to enter a plea of guilty to the charge and that counsel had advised him of the penalty range of 10 years to life in prison, and he understood the court would assess the penalty. 'MR. SUNDEEN: Have you been offered any reward to plead guilty? THE DEFENDANT: No. MR. SUNDEEN: And are you pleading guilty because you are guilty? THE DEFENDANT: Yes.' Appellant was in good health, with no mental illnesses or defects to his knowledge, and the fact that he had been shot and had received medication for the wounds and injuries did not affect his ability to understand what was going on at the time of the plea. Appellant stated he was satisfied with Mr. Sundeen's representation as counsel in this matter, and that he understood that he was in court entering a plea of guilty. At the time appellant's plea was taken, the state made no statement as to what its evidence would be, but at the time of sentencing counsel stated, 'The State's evidence would have been that Mr. Medina was asleep at the time that they broke in and in fact he never woke up before he was shot.'

On April 24, 1970, appellant appeared with counsel for sentencing. At that time the court had the results of the presentence investigation which were read into the record by the court. On the charge upon which appellant had pleaded, the report recited, "On 7--25--69 at approximately 10:30 p.m. Subject accompanied by others burst into a residence at 2118 Monroe, Kansas City, Missouri and began shooting at the victim William Robert Medina and an Everet Hart. Medina who was asleep on the sofa in the house was hit three times with two of the shots being above mid-chest and one above his right eye. An associate of Medina's Everet Hart was shot in the hip while attempting to escape." "Subject's verson. The Subject indicated that he agreed with the official information. He stated that the situation arose when a girlfriend of his borrowed some money from the victim. When she failed to repay same the victim beat her and had indicated that he was going to get Subject. The Subject stated he had no doubt in his mind that Medina was going to shoot him and he decided to get him first. * * *." Appellant's background and social history was recited, including three misdemeanor convictions, and a commitment to the Missouri Training School for Boys on July 17, 1966, from which he was released because of 'over-crowdedness at the school.' Many other facts showing delinquent, violent and aggressive behavior were noted in the report leading up to the instant charge of July 28, 1969, for which appellant was not arrested until August 30, 1969, significantly on a charge of assault with intent to kill with malice (quite apparently Case C--38832, which was dismissed at the time the plea of guilty was taken in this case, noted above). In the report it is recited that the August 30th incident involved a shoot-out with the police, in which appellant was shot and taken to General Hospital, and when later there for treatment he escaped. When asked by the court if he would like to say anything for himself, appellant stated, 'Yes, sir. I realize that I have committed a very serious crime for taking this man's life, and if he was here today I would like to say this to his face. * * *.'

On the hearing of this Rule 27.26 motion appellant testified: 'Mr. Sundeen came up to see me and he explained to me, you know, I had quite a few cases and things. So, therefore, things looked pretty bad, so far as that is concerned. He explained on all my cases, I could get a lot of time and things of that nature. It was at this time that he explained to me that he had been down to talk to the prosecutor and things, and him and the prosecutor had decided that--that he would drop the rest of my charges and break my murder first degree down to murder second in the event that I would plead guilty. And he said that I would get the minimum sentence, which was ten years, and he explained, you know, that--he explained that, you know, if I didn't do it like that, I could get a lot of time off my other cases. * * *.' Other cases pending were assault with intent to kill, escape, and a robbery case. At one point appellant testified there were five cases in all, but the record is not clear as to whether there was another assault case not mentioned by him. Appellant's counsel told him he 'would get a dime' (meaning in jail house terminology ten years), but he never did say that the judge had promised that sentence. It was only the prosecutor and counsel who talked about that. 'Q. Did you discuss any possible defense, such as self defense, justifiable homicide, or those things? A. I mentioned that to him--what happened.' Appellant also told Mr. Sundeen that he had a defense of alibi, and, according to appellant, Mr. Sundeen talked to several witnesses. As to the defense of self defense, Mr. Sundeen told appellant he would check on it and come back and let him know, but 'he just came back and told me about the pleading thing.'

Appellant's mother testified that Mr. Sundeen told her that his sentence would be from 10 to 15 years, and that he could get life imprisonment on the first degree murder charge.

The transcript of the proceedings of the preliminary hearing was received in evidence at this 27.26 hearing. Appellant was then present in person and by...