Saffold v. State, WD

• Decision Date: 08 December 1998
• Docket Number: No. WD,WD
• Citation: 982 S.W.2d 749
• Parties: Sylvester SAFFOLD, Appellant, v. STATE of Missouri, Respondent. 55037.
• Court: Missouri Court of Appeals

Page 749

982 S.W.2d 749

Sylvester SAFFOLD, Appellant, v. STATE of Missouri, Respondent.

No. WD 55037.

Missouri Court of Appeals Western District.

Submitted Aug. 14, 1998.

Decided Dec. 8, 1998.

Irene Karns, Public Defender, Columbia, MO, for appellant.

John M. Morris, Atty. Gen., Jefferson City, MO, for respondent.

Before SMART, P.J., and ELLIS and HOWARD, JJ.

SMART, Judge.

Sylvester Saffold was indicted by the grand jury on charges of rape and sodomy. The victim was his girlfriend's daughter, who was under fourteen years old at the time. Saffold pleaded guilty to the charge of sodomy, § 566.060.2, RSMo 1986, and was sentenced to a term of five years imprisonment with execution of sentence suspended, and with three years of supervised probation. Saffold's probation was revoked after a hearing on October 3, 1996. He appeals the denial of his motion to vacate sentence and judgment under Rule 24.035. Saffold claims that his decision to enter a plea of guilty was not voluntary, knowing and intelligent because he did not understand the nature of the offense to which he was pleading guilty. He claims that the plea court accepted his plea without establishing a factual basis as required by due process and Rule 24.02. Saffold also contends that it was error for the motion court to deny his motion for post-conviction relief because his right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 18 of the Missouri Constitution, had been violated in that counsel failed to advise Saffold that the incident upon which the charge was based did not constitute the offense of sodomy. Because a sufficient factual basis for the plea was not established by the plea court, Saffold's conviction must be reversed and the cause remanded with directions that Saffold be allowed to withdraw his plea of guilty.

Facts

On July 12, 1994, Sylvester Saffold was arrested on a narcotics charge. During a check on Saffold's identity, the police learned that a pick-up order for rape had been issued by the Sex Crimes Unit. The alleged victim of the rape was Saffold's girlfriend's daughter, who was under fourteen years of age at the time of the incident forming the basis for the charge. ¹ Saffold waived his Miranda ² rights and gave a statement in which he initially denied any sexual contact with the victim. At a later point during the interrogation, Saffold stated that the victim had been in bed with him and her mother, sleeping between them. Saffold woke to find the victim sucking on his penis. He told her to stop, he said, and asked why she would do such a thing. Saffold stated that the victim told him that she wanted to do everything that she saw her mother do.

Saffold was indicted by the grand jury on charges of rape and sodomy. He was then charged by information with one count of sodomy, "in that between January 1990 and January 1991, in the County of Jackson, State of Missouri, the defendant had deviate sexual intercourse with [victim] (dob 08/10/87), to whom defendant was not married and who was then less than fourteen years old." Saffold entered into a plea bargain with the State. In return for Saffold pleading guilty on the sodomy charge, the State dropped the rape charge and recommended a five-year sentence, execution suspended, with three years probation. Saffold was required to undergo sex offender treatment and have no contact with the victim.

Saffold testified as to his understanding of the plea agreement. He was questioned about the basis for the plea at several times during the plea hearing:

Q. [by defense counsel] Are you representing to the Court, Mr. Saffold, that between the months or between the time of October or January 1, 1990 and January of 1991, in Kansas City, Jackson County, Missouri, [Victim] placed her mouth on your penis?

A. Yes, ma'am.

Q. At that time was she under 14 years of age?

A. Yes, ma'am.

* * * *

Q. [by the Court] Now, sir, have you read the charge?

A. Yes, sir.

Q. You understand that you're charged between the dates stated that you had deviate sexual intercourse with [Victim]?

A. Yes, sir.

Q. Is that a true statement, sir?

A. Yes, sir.

Q. Were you married to [Victim]?

A. Yes, sir?

Q. Was--

A. No, sir.

Q. Was she then less than 14 years of age?

A. Yes, sir.

Q. I read the probable cause statement that the police brought over at the time of your arrest. Did you participate in this act knowingly?

A. No, sir.

Q. If you want you can go to trial, the State would have the obligation of proving all the elements of the offense and in the event there was one or more elements of the offense that the State did not prove, instructions would lead the jury to find you not guilty. Now in entering this plea, do you admit that, your criminal responsibility in this act, sir?

A. Yes, sir.

Q. Is there any circumstance or fact about that that [sic] you believe--let me start that question again. Is there any fact or incidents about the crime that you're charged with that you believe should absolve you or free you of any criminal responsibility in this case?

A. No, sir.

Q. Are you pleading guilty because you are, in fact, guilty?

A. Yes, sir.

The court found that Saffold's plea was made freely and voluntarily. It also found that Saffold was guilty beyond a reasonable doubt of the crime charged. After the court accepted Saffold's plea, it sentenced him to five years imprisonment. It then suspended execution of the sentence and placed him on probation for three years. As a condition of his probation, Saffold was to have no contact with the victim or her family. He was also to undergo sex offender counseling.

Saffold subsequently violated his probation. At the violation hearing the court found that Saffold had used marijuana and cocaine. He also failed to report to his probation officer and failed to successfully complete sex offender counseling. The court ordered that Saffold's sentence be executed.

On November 27, 1996, Saffold filed a pro se Rule 24.035 motion for post-conviction relief. An amended motion was filed by counsel on February 7, 1997. After an evidentiary hearing, held July 17, 1997, the court denied Saffold's motion. In its findings of fact and conclusions of law, the motion court found, inter alia, that Saffold's allegation that his plea was accepted by the court without a determination of whether a factual basis for the plea existed, was not supported by the transcript of the plea and sentencing hearing nor by the evidence adduced at the Rule 24.035 hearing. The court also found that Saffold had not been denied effective assistance of counsel.

Saffold appeals.

Standard of Review

Rule 24.035(k) restricts appellate review to a determination of whether the findings and conclusions of the motion court are clearly erroneous. The findings and conclusions are deemed erroneous if after reviewing the record, this court is left with the definite and firm belief that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Movant bears the burden of establishing his grounds for relief by a preponderance of the evidence. State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996). This burden is a heavy one; the hearing court is free to believe or disbelieve any evidence, whether contradicted or undisputed, including the movant's testimony. Short v. State, 771 S.W.2d 859, 864 (Mo.App.1989). We give deference to the motion court on matters of credibility. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

No Factual Basis for Saffold's Plea

In Point I, Saffold contends that the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief because the ruling violated his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 10 of the Missouri Constitution in that his plea was unknowing and involuntary because he did not understand the factual basis for the plea. Saffold claims that he pleaded guilty without understanding that the incident he described did not constitute the offense of sodomy.

Rule 24.035 provides a vehicle for a prisoner to challenge the legality of his conviction or sentence after a guilty plea. We have not found a case specifically holding that a claim of violation of a Rule 24.02 factual basis requirement is cognizable in a 24.035 proceeding. However, many courts have entertained the factual basis issue in a 24.035 proceeding. See, e.g., Taylor, 929 S.W.2d at 209; Hoskin v. State, 863 S.W.2d 637 (Mo.App.1993). Also, the language of Rule 24.035, inviting claims of the defendant that his conviction violates the constitution and laws of this state or of the United States, is amply broad to suggest the applicability of the claim in the 24.035 proceeding. Cf. also Blackford v. State, 884 S.W.2d 98 (Mo.App.1994) (finding another section of Rule 24.02 pertinent to a Rule 24.035 inquiry).

At the evidentiary hearing, Saffold testified that he had given the police a statement concerning the incident. He claimed that the victim was in bed with him and her mother. He woke to find the victim's mouth on his penis, and he told her to quit. Saffold said that he wanted to enter a plea based upon North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) in which Saffold would deny actual guilt, but would plead guilty on the basis that there was substantial evidence of his guilt. The State, however, refused to accept an Alford plea.

The State contends that the record supports the motion court's findings that the conduct charged fell within the then definition of "deviant sexual behavior" and that the offense of sodomy does not require a particular state of mind. Moreover, the state points out that it is not constitutionally mandated that a sufficient factual basis be established when a defendant admits his guilt.

By pleading guilty, a defendant waives all errors except for those...