Scroggins v. State, WD

• Citation: 859 S.W.2d 704
• Decision Date: 01 June 1993
• Docket Number: No. WD,WD
• Parties: Dwight SCROGGINS, Appellant, v. STATE of Missouri, Respondent. 46298.
• Court: Missouri Court of Appeals

Page 704

859 S.W.2d 704

Dwight SCROGGINS, Appellant, v. STATE of Missouri, Respondent.

No. WD 46298.

Missouri Court of Appeals Western District.

June 1, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 27, 1993.

Application to Transfer Denied Sept. 28, 1993.

Robert E. Steele, Jr., Asst. Appellate Defender Office, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Dwight Scroggins appeals the trial court's denial of his Rule 24.035 motion for postconviction relief and his Rule 29.07(d) motion to withdraw guilty plea. On February 11, 1991, Scroggins pleaded guilty to one count of sale of a controlled substance, § 195.211, RSMo Cum.Supp.1992. ¹ On June 6, 1991, Scroggins entered Alford pleas to one count of sale of a controlled substance, § 195.211, and one count of armed criminal action, § 571.015, RSMo 1986. ² Scroggins raises two points on appeal. Scroggins asserts that the motion court erred in 1) denying his Rule 29.07(d) motion to withdraw guilty plea because such denial resulted in manifest injustice; and 2) denying his Rule 24.035 motion for postconviction relief because he received ineffective assistance of counsel in that his counsel failed to adequately investigate.

The judgment is affirmed.

Scroggins was charged with sale of cocaine and possession of cocaine in CR90-2267. On February 11, 1991, pursuant to a plea bargain, Scroggins pleaded guilty to sale of cocaine and the state dismissed the charge for possession of cocaine.

Scroggins was later charged in CR91-1943 with another count of sale of cocaine and with armed criminal action. On June 6, 1991, Scroggins entered Alford pleas to both charges and was sentenced to ten years for sale of a controlled substance and ten years for armed criminal action. On the same date, Scroggins was also sentenced in CR90-2267 to seven years for sale of a controlled substance pursuant to the plea entered on February 11, 1991. All three sentences were to run concurrently.

Scroggins filed a pro se Rule 24.035 motion. Scroggins' grounds for relief in his pro se motion were 1) that his Alford pleas of guilty were coerced because his counsel misled him to believe that the potential range of punishment was up to fifteen years in prison; and 2) that the state did not plead a cause of action for the sale of cocaine because the underlying criminal statute was defective. Kelley J. Henry, of the Office of the Special District Defender, was appointed on September 24, 1991 to represent Scroggins. On November 7, 1991, the motion court granted Scroggins leave to file an amended motion by November 25, 1991. A verified amended motion was filed on November 25, 1991. The grounds for relief in the amended motion were 1) that Scroggins' counsel, Cecil Williams in CR90-2267 and Geary Jaco in CR91-1943, were ineffective for failure to investigate the allegations in the indictments; and 2) that his plea of guilty in CR90-2267 was not knowing and voluntary because he was pressured to plead guilty by counsel, Cecil Williams.

On December 24, 1991, Scroggins filed an unverified second amended Rule 24.035 motion. The second amended motion stated that Scroggins' ground for relief was that the state failed to disclose an investigation of alleged misconduct of a prosecution witness, Kansas City police officer Frederick Lewis. Scroggins also filed a Rule 29.07(d) motion to withdraw guilty plea, praying that the court allow him to withdraw his Alford pleas entered on June 6, 1991. The Rule 29.07(d) motion alleged that manifest injustice resulted from the state's failure to reveal that Lewis was under investigation for misconduct.

During the postconviction proceedings, Scroggins filed a motion for discovery seeking disclosure of all records concerning Lewis. Pursuant to § 610.021(3) and (13), Lewis's personnel file was confidential and unavailable to Scroggins' counsel, but the motion court examined Lewis's personnel file in camera.

The motion court did not find any information in the personnel file pertaining to the charges to which Scroggins pleaded guilty on June 6, 1991. The motion court found that the investigation of Lewis involved drug transactions he participated in as a police officer, but not the transactions for which Scroggins was charged. The misconduct being investigated concerned whether Lewis appropriated Street Narcotics Unit funds for his own use. The file indicated that Lewis initially took money on four occasions from February 1991 to April 1991 to pay for his child's operation, but that he had repaid the money. He was suspended and transferred out of the Street Narcotics Unit for such conduct. Subsequent allegations were that he had misappropriated funds in August and September of 1991. Lewis was suspended without pay as a result of the new allegations. The charges had not been formally resolved at the time of the evidentiary hearing in the case at hand.

The evidence is unclear as to the exact date the prosecutor's office was notified of the investigation. The state asserts that the Kansas City Police Department did not notify the prosecutor's office of the investigation until September, 1991, even though the investigation was initiated in February, 1991. ³ Geary Jaco, Scroggins' guilty plea counsel in CR91-1943, testified that he became aware of the allegations against Lewis in July of 1991. Jaco testified that he spoke with Lewis about the allegations and did not discover information indicating that Scroggins' arrest was in any way involved in the allegations against Lewis.

After an evidentiary hearing, the motion court denied the motion to withdraw guilty plea upon finding that Scroggins' guilty plea was knowing and voluntary. The motion court found Scroggins' second amended motion to be untimely and unverified. The motion court also denied the first amended Rule 24.035 motion. Scroggins filed a timely notice of appeal.

In Point I, Scroggins alleges that the motion court abused its discretion in denying his Rule 29.07(d) motion to withdraw guilty plea because such denial resulted in manifest injustice in that the state withheld material evidence relevant to Scroggins' decision to enter an Alford plea. Scroggins asserts that he would not have agreed to submit a plea if the state had disclosed such evidence.

A defendant does not have an absolute right to withdraw a guilty plea. State v. Mandel, 837 S.W.2d 571, 573 (Mo.App.1992). The motion court may grant the relief requested in a motion to withdraw guilty plea after imposition of sentence only upon a showing that such is necessary to correct manifest injustice. State v. Hasnan, 806 S.W.2d 54, 55 (Mo.App.1991). In reviewing the denial of a motion to withdraw guilty plea, this court is to determine whether the trial court abused its discretion or was clearly erroneous. Id. The defendant must prove by a preponderance of the evidence that the motion court erred. Id.

If Scroggins' plea of guilty was voluntary and was made with an understanding of the charges against him, there was no manifest injustice. Winford v. State, 485 S.W.2d 43, 49 (Mo. banc 1972). If, however, Scroggins was misled or induced to enter the plea of guilty by fraud, mistake, misapprehension, coercion, duress or fear, he should be permitted to withdraw his guilty plea. Latham v. State, 439 S.W.2d 737, 739 (Mo.1969); Johnson v. State, 774 S.W.2d 862, 863 (Mo.App.1989); Tillock v. State, 711 S.W.2d 203, 205 (Mo.App.1986). "Unawareness of certain facts at the time of a plea does not necessarily render the plea unintelligent or involuntary." State v. Nielsen, 547 S.W.2d 153, 161 (Mo.App.1977).

Scroggins asserts that manifest injustice occurred because the state failed to disclose, prior to entry of his Alford plea, that the police officer involved in Scroggins' arrest, Officer Frederick Lewis, was under investigation by the Kansas City Police Department for misconduct. Scroggins also argues that the Jackson County Prosecutor's Office dismissed cases involving Officer Lewis after the investigation became public, including the case against Scroggins' brother and co-defendant, Kevin Scroggins.

A prosecutor's failure to disclose exculpatory evidence to the defense denies a defendant a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment, if the undisclosed evidence was material. Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). The principles of Brady are applicable to the entry of a plea of guilty. State v. Choate, 639 S.W.2d 906, 908 (Mo.App.1982); Lee v. State, 573 S.W.2d 131, 133 (Mo.App.1978). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A reasonable probability is that which undermines one's confidence in the outcome. Id. This standard for materiality is applicable whether there is a specific request, a general request or no request for the undisclosed evidence. Id. The state's duty to reveal material information favorable to the defendant encompasses impeachment evidence concerning a key prosecution witness, as well as exculpatory evidence. Lee, 573 S.W.2d at 133.

[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial:

"For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor's constitutional duty to disclose....

"... But to reiterate a critical point, the prosecutor will not...