Richmond v. State, 56935
| Decision Date | 11 September 1972 |
| Docket Number | No. 56935,No. 2,56935,2 |
| Citation | 484 S.W.2d 280 |
| Parties | Charles RICHMOND, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Charles J. Malloy, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner.
Appeal 1 from an order overruling a Rule 27.26, V.A.M.R. motion to vacate a judgment and sentence of 15 years' imprisonment on a reduced charge of murder in the second degree, to which Charles Richmond pleaded guilty on October 27, 1970.
Richmond's motion to vacate, filed January 18, 1971, complained that the guilty plea was obtained by false promises and trickery (because allegedly told by counsel that any sentnece imposed would run concurrently with a 20-year sentence previously imposed by the federal district court in another case) and that the sentencing judge, not having been informed about the federal conviction, was not fully and completely informed of vital matters existing at the time of the plea, which may have had a bearing on the disposition of the case.
The guilty plea was not involuntary because of mistake, misunderstanding or false promises. Richmond did testify at the evidentiary hearing that his counsel assured him that the 15-year sentence would run concurrently with his 20-year sentence, but there was evidence to the contrary which the trial court accepted in making its finding that there was no basis for Richmond's asserted belief that the sentences would run concurrently. Richmond's attorney testified that he made no such promises; that he told Richmond he did not think it possible to have the sentences run concurrently. The assistant circuit attorney, who conferred with Richmond and his counsel immediately prior to the entry of the plea, testified that he told Richmond that a state charge could not run concurrently with a federal charge; that although he could not remember whether the word 'consecutive' was actually used in the conversation, it may have been mentioned that the sentences had to run consecutively; that it was 'only on the basis of the consecutive terms that we reduced (the charge from first to second degree murder).' This testimony provided a substantial basis for the trial court's finding that the matter of concurrency was explained to Richmond 'very plainly and that he understood' the situation before pleading, and that Richmond 'was not induced to plead under the belief that the penalty imposed by the State Court was to run concurrently with that which had been imposed in the Federal Court.' The court's finding on this issue may not be declared erroneous.
It is true that the trial court was not apprised of the 20-year sentence at the time the plea of guilty was entered; that there was no discussion in the court of concurrent or consecutive terms. These facts, however, do not vitiate the plea. If the court had been apprised of the federal conviction it would have been inappropriate and premature for the court to have made any order of concurrency since the federal conviction was not a final judgment. An appeal was pending. There was nothing upon which such an order could have operated. Any such order necessarily would have been made on a contingency, or subject to a future decision, which would have violated the rule that a sentence must be certain and definite. 24 C.J.S. Criminal Law § 158la., pp. 553, 555. Furthermore, the two crimes--bank robbery and murder--were totally unrelated, having occurred at different times and places.
The federal sovereignty acquired custody of Richmond first. The murder occurred after he had been arrested on the bank robbery charge. From the record it is apparent that following the appeal of the federal conviction the federal authorities at least temporarily waived their exclusive right to exhaust federal remedies to the exclusion of state sovereignty, and under the principles of comity conferred upon Missouri jurisdiction of Richmond, for the purpose of trial of the state charge, see Montos v. Smith, 5 Cir., 406 F.2d 1243; Brown v. State, Mo.Sup., 452 S.W.2d 176, 178(3--5); 22 C.J.S. Criminal Law § 145 c., p. 388, fns. 64, 65, and apparently for the purpose of allowing Missouri to exhaust state remedies (for Richmond began service of his state sentence after the plea and is now serving that sentence). Upon the affirmance of the judgment of conviction in the bank robbery case by the federal court of appeals the appropriate court to enter any order of concurrency would be the federal court. Such an order, entered after final conviction, would relate to a sentence then being served under the state conviction. See Chaney v. Ciccone, 8 Cir., 427 F.2d 363, 365(1). Accordingly, there could have been no prjuidice to Richmond arising out of the fact that the sentencing judge knew nothing of the federal conviction, and the circuit court did not err in finding that the fact that the federal conviction was not made known to the sentencing judge 'makes no difference' since the two crimes were entirely separate and unrelated and the federal conviction was not final.
Nor was error committed in ruling against Richmond on...
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State v. Mobley, 6-337571
...517 (1976); Merritt v. Commonwealth, 47 S.W.2d 625, 627 (Ky.1969); State v. Sturgis, 110 Me. 96, 99, 85 A. 474 (1912); Richmond v. State, 484 S.W.2d 280, 282 (Mo.1972); Anthony v. Kaiser, 350 Mo. 748, 752, 169 S.W.2d 47 (1943); In re Swink, 243 N.C. 86, 91, 89 S.E.2d 792 (1955); Hudson v. Y......
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State v. Cooper, WD
...This interpretation is in harmony with the principle that, to be valid, "a sentence must be definite and certain." Richmond v. State, 484 S.W.2d 280, 282 (Mo.1972). In Richmond, the Missouri Supreme Court was faced with an analogous case in which the appellant questioned the validity of his......
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