Schellert v. State

• Decision Date: 12 September 1978
• Docket Number: No. 60305,60305
• Citation: 569 S.W.2d 735
• Parties: Patrick C. SCHELLERT, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 735

569 S.W.2d 735

Patrick C. SCHELLERT, Appellant, v. STATE of Missouri, Respondent.

No. 60305.

Supreme Court of Missouri, En Banc.

Sept. 12, 1978.

Gary L. Gardner, Asst. Public Defender, Melvin G. Franke, Public Defender, Union, for appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

Appellant pleaded guilty to feloniously uttering a check for over $100.00 without sufficient funds for payment. He was sentenced to five years' imprisonment, the maximum penalty. The facts about the guilty plea and sentencing were that after several continuances, during which it was uncertain whether appellant had funds to or would employ counsel, appellant appeared on the trial date, without counsel, and informed the court he would like to change his plea. The court also was told by the prosecutor that he had told appellant that if he were to plead guilty the state would recommend probation. The court asked appellant if he understood that the recommendation "is nothing more than that" and that the court had authority to impose different punishment. Appellant responded, "Yes, sir, I'm very well aware of that."

After informing appellant of the rights waived by a plea of guilty and questioning appellant and the prosecutor as to the facts on which the charge was based, the court accepted appellant's plea of guilty and ordered a pre-sentence investigation. Approximately nine weeks later appellant appeared, again without counsel. The court announced its readiness to proceed and reminded appellant that the court was not involved in the recommendation made by the prosecutor and was free to impose whatever sentence it deemed appropriate. The court then granted allocution and imposed the five-year sentence. At no time prior to imposition of sentence did the court inform defendant the court was not going to follow the recommendation of the prosecutor, and this being the case, of course the occasion never arose whereby the appellant was given an opportunity thereafter to withdraw his plea.

In his subsequent rule 27.26 motion, appellant contended that he did not knowingly and intelligently waive his right to the The trial court denied the 27.26 motion without an evidentiary hearing and this was affirmed by the court of appeals, St. Louis district, with Dowd, J., dissenting. The majority opinion found that "the guilty plea proceeding substantially followed that recommended in Judge Donnelly's separate concurring opinion in Flood v. State, 476 S.W.2d 529, 535-37 (Mo.1972)", which restated former rule 11 of the Federal Rules of Criminal Procedure prior to the 1975 amendments.

assistance of counsel and that his plea of guilty was involuntary.

We granted transfer to consider whether, as a matter of substantial fairness, a trial court should afford a criminal defendant the opportunity to withdraw a plea of guilty in any case in which the judge determines not to grant the sentence concessions contemplated by a plea agreement or plea bargain made between the defendant and the prosecutor. We believe that such is required and therefore reverse and remand the custody of the accused to the trial court for the entry of a new plea. ¹

It is commonly estimated that at least ninety percent of all criminal convictions are by pleas of guilty. Alschuler, The Trial Judge's Role in Plea Bargaining, Part I, 76 Colum.L.Rev. 1059, n.1 (1976); 8 J. Moore's Fed.Prac. § 11.01(4), at 11-11 (1977); See Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Each such plea "is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), to confront one's accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), to remain silent, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and to be convicted by proof beyond all reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)." Santobello v. New York, 404 U.S. 257, 264, 92 S.Ct. 495, 500, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring).

Plea bargaining, in more recent years, has been openly discussed and acknowledged to be "not only an essential part of the (criminal justice) process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned." Santobello v. New York, supra, 404 U.S. at 261, 92 S.Ct. at 498; See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978); Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621 (1977); Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1463, 25 L.Ed.2d 747, 52 L.Ed.2d 136 (1970); American Bar Association Project on Minimum Standards for Criminal Justice (hereinafter ABA Standards), Standards Relating to Pleas of Guilty 1-3 (Approved Draft Plea bargaining has thus become accepted by the courts as "a legitimate and respectable adjunct of the administration of the criminal laws." State v. Thomas, 61 N.J. 314, 321, 294 A.2d 57, 61 (1972). There is "nothing unholy in honest plea bargaining between the prosecutor and defendant and his attorney in criminal cases." Id., quoting State v. Taylor, 49 N.J. 440, 455, 231 A.2d 212, 221 (1967).

1968); ALI Model Code of Pre-Arraignment Procedure, § 350.3, Commentary (1975). Guilty pleas must be knowing and voluntary as a matter of fact, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Flood v. State, 476 S.W.2d 529, 634 (Mo. banc 1972), and such must be evidenced by the record under our order of February 22, 1972, accompanying rule 25.04.

A criminal defendant obviously makes a choice when he agrees (acting alone or through or with his attorney) in a bargain with the prosecutor to plead guilty and waive the full panoply of non-jurisdictional constitutional rights. In the instant case, the state's attorney insisted in oral argument that there are certain "risks" involved in plea bargaining, which he likened to the risk that a jury might sentence a first offender to more punishment than he would expect or hope. ² This is an unsound argument, however, because it is the very risk of uncertainty before a jury which the defendant seeks to avoid in striking an agreement with the prosecutor. If the risk were the same, he would be foolish to waive his right to trial in exchange for the prosecutor's recommendation as to sentence or disposition. The risk is demonstrably not the same, as evidenced by the overwhelming number of plea bargains. The actions of judges and prosecutors speak louder than words, and criminal defendants "ordinarily . . . (have) very little reason to fear that this (plea agreement) . . . (will) be disregarded by the court. Alschuler, supra, 76 Colum.L.Rev. at 1065.

"For a system of criminal justice strongly to encourage a defendant to believe that a certain sentence will follow the abandonment of his constitutional rights and yet to impose an entirely different sentence seems manifestly unfair," Id. at 1069; See Note, Withdrawal of Pleas in Nebraska: The Rejected Plea Bargain, 56 Neb.L.Rev. 193, 202 (1977), and "a mockery of justice." Note, Plea Bargaining Proposed Amendments to Federal Criminal Rule 11, 56 Minn.L.Rev. 718, 730 (1972). Defendants who plea bargain are clearly so encouraged. See ABA Standards, Pleas of Guilty, § 3.1 Commentary at 60-69 (Approved Draft, 1968). It "is not unusual for an accused to be lulled into believing that the court proceedings are a mere formality, and that everyone involved is party to the promised bargain, upon which the plea is founded." Commonwealth v. Barrett, 223 Pa.Super. 163, 166, 299 A.2d 30, 31 (1972).

The United States Supreme Court has ruled that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1972). This court has said that a guilty plea is like "a confession" which "should never be received unless it is freely and voluntarily made. If the defendant should be . . . induced to plead guilty by . . . persuasion, or the holding out of hopes which prove to be false or In State v. Good, 403 S.W.2d 594 (Mo.1966), the court praised "a judge who thoroughly, patiently and pointedly disabused accused and his counsel of their preconceived ideas with reference to the length of term of imprisonment he hoped to receive; in effect offered accused a jury trial even after pleas of guilty were entered, and positively stated that he would not assess the recommended punishment." Id. at 600. That effort "exemplif(ies) . . . the extent to which the trial court should explain (its) . . . sentencing function." State v. Bonds, 521 S.W.2d 18, 21 (Mo.App.1975).

ill founded, he should be permitted to withdraw his plea." State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, 148 (1944); State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2 (1933); See Brown v. State, 485 S.W.2d 424, 429 (Mo.1972); State v. Rose, 440 S.W.2d 441, 443 (Mo.1969); State v. Good, 403 S.W.2d 594, 599 (Mo.1966); State v. Williams, 391 S.W.2d 227, 234-35 (Mo.1965).

In short, plea bargaining is an essential component of the criminal justice system, satisfying many useful...