Schmitt v. State

• Decision Date: 28 February 1990
• Docket Number: No. 07-KA-58494,07-KA-58494
• Citation: 560 So.2d 148
• Parties: William E. SCHMITT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 148

560 So.2d 148

William E. SCHMITT v. STATE of Mississippi.

No. 07-KA-58494.

Supreme Court of Mississippi.

Feb. 28, 1990.

Rehearing Denied April 18, 1990.

Lisa P. Dodson, Hopkins & Anderson, Gulfport, for appellant.

Mike C. Moore, Atty. Gen., Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PITTMAN, Justice, for the Court:

I.

William E. Schmitt entered guilty pleas on two (2) counts of fondling and nine (9) counts of sexual battery in the Circuit Court of Harrison County, Mississippi. He was sentenced to twenty (20) years' imprisonment in the aggregate. Schmitt filed a Motion for Post-Conviction Relief alleging that his pleas were involuntary on two (2) grounds: (1) ineffective assistance of counsel in the plea bargaining process, and (2) promise of a suspended sentence.

A full evidentiary hearing was conducted on Schmitt's motion. The trial judge found

that Schmitt had received effective assistance of counsel at all relevant phases of the criminal proceeding and that the pleas had been freely and voluntarily entered. From this ruling Schmitt perfected appeal to this Court. We affirm.

II.

William E. Schmitt's wife, Joanne, had two daughters by a previous marriage who lived in the home with them. For the purposes of this opinion, the minor girls shall be known as Ann and Bea. In October of 1982 Joanne Schmitt returned home from work earlier than usual and found her husband and Ann in the act of sexual intercourse. Ann was sixteen.

Joanne Schmitt contacted the Crisis Center in Gulfport, Mississippi and was referred to the Harrison County Department of Public Welfare. Ann entered counseling, and Joanne and William Schmitt entered therapy. Thereafter, Joanne Schmitt contacted the Gulfport Mental Health Center. She and William Schmitt entered therapy with the clinician with the Center. William Schmitt terminated his therapy after several visits.

On August 18, 1983, Joanne Schmitt once again contacted the Harrison County Department of Public Welfare. She informed them that no other sexual abuse had occurred, but other problems had developed and requested assistance in making plans to leave William Schmitt.

The day after Thanksgiving, 1983, Joanne Schmitt learned from Ann that William Schmitt had been "threatening" Bea. Joanne confronted Bea with this information. Bea told her mother that William Schmitt, her stepfather, had been sexually abusing her since October of 1979.

William Schmitt moved out of the home in December of 1983 and had no further contact with the family. Joanne Schmitt filed for a divorce and filed criminal charges against William Schmitt alleging the rape of Ann and sexual molestation of Bea.

William Schmitt was indicted May 18, 1984, on four (4) counts of fondling Bea and nine (9) counts of sexual battery against Ann. Schmitt retained counsel and entered not guilty pleas to all charges on June 21, 1984. Two (2) of the fondling charges were subsequently dismissed as being barred by the Statute of Limitations.

Schmitt waived his right to trial by jury. Trial on the eleven (11) remaining charges was scheduled for September 28, 1984. On the day trial was to commence Schmitt's counsel filed a Motion to Consolidate the eleven (11) charges and a Motion for Continuance. Although the Motion for Continuance was conceded by the State, Schmitt nevertheless, that day, withdrew his pleas of not guilty and entered pleas of guilty to all eleven (11) charges. Sentencing was deferred pending receipt of a pre-sentence investigation report from the Mississippi Department of Corrections.

Sentencing was had January 18, 1985. Schmitt was sentenced as follows: ten (10) years on each of the two (2) fondling charges to run concurrently; ten (10) years on each of the nine (9) sexual battery charges, to run concurrently. The sexual battery sentences were to run consecutively to the fondling sentences, giving Schmitt a total sentence of twenty (20) years.

Schmitt's counsel filed a motion for the court to retain jurisdiction and reconsider the sentence on January 22, 1985. No action was taken on this motion.

Schmitt filed pro se motions for relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. Sec. 99-39-1 et seq. (effective April 17, 1984) on March 10, 1986 and April 3, 1986. Schmitt asked for relief on the basis that his pleas were involuntarily made for two (2) reasons: (1) ineffective assistance of counsel and (2) promise of a suspended sentence.

A hearing on Schmitt's motions was conducted on August 29, 1986, in the Circuit Court of Harrison County. At this time Schmitt had new counsel. Following receipt of all the evidence, the court took the matter under advisement.

On February 23, 1987, the court entered its Order dismissing Schmitt's motion for post-conviction relief. Specifically, the

court found that Schmitt's guilty pleas had been entered freely and voluntarily without any threats or promises and that Schmitt had received effective assistance of counsel at every stage of the judicial proceedings. From that Order and judgment Schmitt perfected this appeal.

III.

This appeal deals with the voluntariness of Schmitt's pleas. "The question whether a plea of guilty was a voluntary and knowing one necessarily involves issues of fact." Sanders v. State, 440 So.2d 278, 283 (Miss.1983).

The trial court in the case sub judice, sitting without a jury, held an evidentiary hearing to determine the voluntariness of Schmitt's pleas. Under these circumstances, our standard of review is well settled: this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Reynolds v. State, 521 So.2d 914, 918 (Miss.1988); Merritt v. State, 517 So.2d 517, 520 (Miss.1987).

If a trial court sitting without a jury fails to make some specific findings of fact, this Court will infer that such findings were resolved in favor of the Appellee. Pace v. Owens, 511 So.2d 489, 491-92 (Miss.1987) and cases cited therein. No such inference or assumption is applicable, however, when the trial court fails to make any findings of fact whatsoever. Pace v. Owens, 511 So.2d 489, 492 (Miss.1987); Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987).

Schmitt had the burden of proving the involuntariness of his guilty pleas by a preponderance of the evidence at the evidentiary hearing on his motions. Leatherwood v. State, 539 So.2d 1378, 1381 n. 4 (Miss.1989); McClendon v. State, 539 So.2d 1375, 1378 (Miss.1989); Sec. 99-39-1 et seq., Miss.Code Ann. (effective April 17, 1984). This Court will not hesitate to reverse, and gives no deference to findings of the trial court, if the trial court applied the wrong legal standard in reaching its decision. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989); Detroit Marine Engineering v. McRee, 510 So.2d 462, 467 (Miss.1987); Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985).

A. DID THE CIRCUIT COURT ERR IN FINDING THAT SCHMITT'S GUILTY PLEAS WERE MADE FREELY AND VOLUNTARILY AND WERE NOT INDUCED BY PROMISES OR COERCION?

At the hearing on Schmitt's motions for post-conviction relief, Schmitt testified that the day his trial was to begin he was sitting in the hallway of the courthouse, waiting to go into the courtroom. He stated that a few minutes before his trial was to be called, Attorney Wusnack came out from the back of the courthouse and told Schmitt that he had just come from Judge Thomas' court, and that if he would plead guilty to all the charges, Judge Thomas would give him a suspended sentence. According to Schmitt:

I protested at that time because I was not guilty of the sexual battery charge, I was not guilty of the fondling, I did not want to do it. He more or less told me to hold my pride, also added that if I didn't do it I could look for a Court appointed lawyer, he kind of said they weren't too good because they got anybody who walked in the door and there was a lot of stress on me. Prior to that I had been going to the Mental Health and one of the things they were telling me and I was going along with it at that moment, I had been under a lot of pressure and people had surrounded me with the pressure from my ex-wife and phone calls and harassment, and the kids were getting a lot of pressure I'm sure and one of the things they were telling me was not to put the family through more stress for me to take responsibility and to some how resolve the thing so that nobody would get hurt any further. He then instructed me at that point at that point ... that the judge would ask me if I had a plea bargain or a promise and I was instructed to say no. He said that the judge would be--act very harsh and tough and aggressive, mainly to put on a Schmitt admitted that he had engaged in sexual relations with Ann, but insisted that the acts were with Ann's consent, and that he therefore was not guilty of sexual battery. Schmitt's claim that Ann's participation in the sexual acts was consensual is supported by her statement, reflected in the pre-sentence report, that she didn't know that having intercourse with her [step]father was viewed as immoral by society.

show for the prosecuting attorney who seemed to be not in on this.

Schmitt denied ever having fondled Bea, but insisted that even if the alleged incidents took place, he could not be legally guilty of fondling, as Bea was fourteen at the time of the alleged incidents and the fondling statute applies only to persons under the age of fourteen. See Miss.Code Ann. 97-5-23 (Supp.1983). Schmitt stated that in the hearing on his guilty plea he admitted to the fondling and sexual battery charges only because his attorney told him that the judge would not accept his guilty plea if he did not admit all the charges.

Judge James E. Thomas, the judge who accepted Schmitt's guilty pleas and sentenced him, testified that he had made no promise to Schmitt or to to his attorney regarding sentencing. H...