Sharp v. State, s. 66572

• Decision Date: 22 August 1995
• Docket Number: Nos. 66572,66686,s. 66572
• Citation: 908 S.W.2d 752
• Parties: James R. SHARP, Appellant, v. STATE of Missouri, Respondent. STATE of Missouri, Respondent, v. James R. SHARP, Appellant.
• Court: Missouri Court of Appeals

Page 752

908 S.W.2d 752

James R. SHARP, Appellant, v. STATE of Missouri, Respondent.

STATE of Missouri, Respondent, v. James R. SHARP, Appellant.

Nos. 66572, 66686.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 22, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 12, 1995.

Application to Transfer Denied

Nov. 21, 1995.

Leo Norbert Griffard, Jr., Boise, Idaho, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michelle A. Freund, Asst. Atty. Gen., Jefferson City, for respondent.

CRAHAN, Judge.

Defendant, James R. Sharp, entered a plea of guilty to one count of involuntary manslaughter, § 565.024 RSMo.1994, and three counts of assault in the second degree, § 565.060 RSMo.1994. Defendant was sentenced to seven years imprisonment on the manslaughter count and to three years imprisonment on each of the assault counts. The sentences were ordered to run consecutively. Defendant filed a Rule 29.07(d) motion to withdraw his guilty plea and remand the cause for preliminary hearing. The trial court denied the motion. Defendant also filed a Rule 24.035 motion for postconviction relief which was denied following an evidentiary hearing. Defendant appeals both the denial of his motion to withdraw his plea and the denial of his Rule 24.035 motion. We affirm.

Defendant was charged by information with involuntary manslaughter and three counts of second-degree assault. Defendant waived his right to a preliminary hearing and entered a plea of guilty to all four counts in exchange for the state's promise to make an open recommendation regarding all four counts. Specifically, by agreeing to an open recommendation on all four counts, the state agreed to not make any sentencing recommendation to the court and to remain silent regarding the issue of punishment, permitting the court to sentence Defendant anywhere within the full range of punishment.

At the plea hearing, Defendant admitted that on December 4, 1992, he was driving his truck on Highway F in Jefferson County. Judy Darling was traveling in the opposite direction on Highway F with her three daughters, Angela, Kathy and Amanda. Near a hill and curve in the road, Defendant crossed the center line and struck Judy Darling's vehicle, killing Angela and injuring Judy, Kathy and Amanda. A blood sample indicated that Defendant was intoxicated.

During the sentencing hearing the state called Judy Darling to present a victim impact statement. The state asked Ms. Darling, "Ma'am, in your own words tell the Court just exactly how this [Defendant's crimes] has affected you, what you expect of his Honor, basically give the impact statement, if you will, please." In response, Ms. Darling delivered an emotional statement concerning her daughters' injuries and the death of Angie. Ms. Darling concluded her remarks by asking the court "for Angie's sake, that Mr. Sharp be prosecuted to the fullest extent that the law will allow." Defendant made no objection to Ms. Darling's testimony.

After sentencing, Defendant filed a Rule 29.07(d) motion to withdraw his guilty plea and remand the cause for a preliminary hearing alleging Ms. Darling's statement, and specifically her request for the maximum sentence, breached the plea agreement. The trial court denied the motion.

Defendant timely filed a pro se Rule 24.035 motion and amended motion for postconviction relief, alleging that his guilty plea was involuntary because the state had breached the plea agreement by either colluding with Ms. Darling to circumvent the plea agreement by recommending a maximum sentence or failing to advise her that she was not permitted to make a sentencing recommendation. Defendant also alleged his attorney was ineffective for failure to object to Ms. Darling's testimony. Following an evidentiary hearing, the motion court denied Defendant's motion.

In his first point, Defendant contends the trial court erred in overruling his motion to withdraw his guilty plea. In that motion Defendant claimed that the state breached the agreement by calling Ms. Darling as a witness to give a victim impact statement which included a request for a maximum sentence despite the state's agreement to remain silent on the subject of sentencing.

Whether to permit a defendant to withdraw a plea of guilty is within the sound discretion of the trial court. State v. Mandel 837 S.W.2d 571, 573 (Mo.App.1992). In reviewing the denial of a motion to withdraw a guilty plea, we must determine whether the trial court abused its discretion or was clearly erroneous. Id.; Scroggins v. State, 859 S.W.2d 704, 706 (Mo.App.1993). The defendant must prove by a preponderance of the evidence that the trial court erred. Mandel, 837 S.W.2d at 573.

A defendant does not have an absolute right to withdraw a plea of guilty. Scroggins, 859 S.W.2d at 706. Rule 29.07(d) does permit an accused to withdraw a plea of guilty after sentencing but only in extraordinary circumstances to correct manifest injustice. State v. Nielsen, 547 S.W.2d 153, 158 (Mo.App.1977); State v. Lawrence, 614 S.W.2d 1, 2 (Mo.App.1980). If an accused has been misled or induced to plead guilty because of fraud, mistake, misapprehension, fear, persuasion or holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea. Scroggins, 859 S.W.2d at 707.

Where a plea bargain is based to a significant degree on a promise by the prosecutor, to the extent that it is part of the inducement or consideration for entering the plea, the promise must be fulfilled. North v. State, 878 S.W.2d 66, 67 (Mo.App.1994); Murphy v. State, 866 S.W.2d 895, 896 (Mo.App.1993). If a prosecutor fails to fulfill a promise which induced a guilty plea, the defendant is entitled to relief. North, 878 S.W.2d at 67. We have held that a breach of plea agreement occurs where a prosecutor promises to make no recommendation regarding sentencing in exchange for a guilty plea but later makes a recommendation. Id. at 67-68.

In this case, we find no allegation or evidence that the state made any agreement that would in any way foreclose testimony by the victim or a request by the victim for a specific sentence. The sum and substance of the state's agreement was that the state would remain silent on the issue of sentencing. There was no agreement that the victim would remain silent on the issue of sentencing. Nor, contrary to Defendant's contentions, does the fact that the state called the victim to the stand and asked the open-ended question that preceded the victim's recommendation thereby transform her into a witness for the state. Ms. Darling appeared in her own behalf, not on behalf of the state. Although called to the stand and invited to give her statement by the prosecutor, nothing in her testimony purported to present the views of the prosecutor, the state, or anyone other than herself or her family.

Defendant complains nevertheless that neither Article I, § 32 of the Missouri Constitution nor § 557.041 RSMo 1994 pertaining to crime victim's rights grant a crime victim the right to ask for a specific sentence. Rather, Defendant urges that the statute limits any statement by the victim to the facts of the case and a description of any personal injuries or financial losses incurred. ¹ Again reasoning that Ms. Darling was the state's witness, Defendant urges that the state breached the agreement by failing to advise Ms. Darling of these limitations on her testimony. There are a number of flaws in this reasoning.

As discussed above, Ms. Darling was not a witness for the state and nothing in the plea agreement purported to restrict in any way the contents of any victim's impact testimony. More fundamentally, however, we find nothing in the statute which purports in any way to limit the scope of the victim's testimony. As recognized in Figgins v. State, 858 S.W.2d 853 (Mo.App.1993), § 557.041 merely guarantees the right of certain named individuals, particularly the victim, to testify at a plea bargain or sentencing hearing. It does not preclude others from testifying when appropriate. 858 S.W.2d at 555. Nothing in the statutes purports to restrict or modify the common law rule that "[a] judge may appropriately conduct an inquiry, broad in scope, largely unlimited in nature either as to the kind of information he may consider, or the source from which it may come." Figgins, 858 S.W.2d at 856; Jones v. State, 658 S.W.2d 504, 506 (Mo.App.1983); Edwards v. State, 794 S.W.2d 249, 251 (Mo.App.1990). In Figgins, the court held it was not error to permit a representative of Mothers Against Drunk Driving to testify at the sentencing hearing even though the testimony included a specific recommendation that the defendant receive the maximum sentence. 858 S.W.2d at 855-56. Likewise we hold that nothing in the statute precludes a crime victim from making a specific sentencing recommendation if permitted by the court. Although the victim may only have an absolute right to submit a written statement or testimony about the facts of the case and its impact on the victim, the trial court retains its broad discretion to receive any information from any source it deems relevant to the sentencing process, including recommendations as to the appropriate sentence to be imposed.

Inasmuch as Defendant failed to plead facts which would constitute a breach of the plea agreement by the state, the trial court did not abuse its discretion in denying Defendant's motion to withdraw the plea.

In his second point, Defendant contends the motion court clearly erred in denying his Rule 24.035 motion for postconviction relief because he alleged facts not clearly refuted by the record which entitled him to relief. Specifically, Defendant contends that the evidence presented to the motion court supported his...