Shepard v. State

• Decision Date: 28 February 1977
• Docket Number: No. KCD,KCD
• Citation: 549 S.W.2d 550
• Parties: Glen Russell SHEPARD, Appellant, v. STATE of Missouri, Respondent. 28697.
• Court: Missouri Court of Appeals

Page 550

549 S.W.2d 550

Glen Russell SHEPARD, Appellant, v. STATE of Missouri, Respondent.

No. KCD 28697.

Missouri Court of Appeals, Kansas City District.

Feb. 28, 1977.

Motion for Rehearing and/or Transfer Denied April 15, 1977.

Thomas R. Bellmann, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

This appeal is taken from an order by the court below denying a Rule 27.26 motion to vacate judgment and sentences previously entered upon appellant's pleas of guilty to charges of carrying a concealed weapon and stealing over $50.00. He received a sentence of four (4) years on the first charge and eight (8) years on the second, such sentences to run consecutively. Two other pending charges against the defendant were dismissed by the prosecutor; the appellant's counsel requested a pre-sentence investigation, and the state made no objection to that procedure; and, the state made no recommendation to the trial court as to sentences at these guilty plea proceedings.

These pleas were entered on March 28, 1974, but the record reveals that the pre-sentence investigation was not received until the latter part of May, 1974, and sentences were not imposed until November 22, 1974. At least part of this delay was due to the fact that other charges were pending in the federal court of the state of Nevada and in the state court in Arizona, in one of both of which the appellant testified as a witness for the prosecution.

At the sentencing hearing below, the assistant prosecuting attorney did make a recommendation to the court that the appellant be given the maximum penalty of five years on the first charge and ten years on the second, and the sole point raised by appellant on this appeal is that in so doing, he materially breached a plea bargain agreement previously reached between appellant's then counsel and the assistant prosecuting attorney that included the agreement that the state would make no recommendation as to sentences at any stage of the proceedings. Appellant's argument stands upon the proposition that such breach of the agreement rendered his guilty pleas involuntary.

On the other hand, while the state concedes that a plea bargain was in fact entered into, its position both at the hearing on the motion to vacate and here, is that the agreement was only that the state would make no recommendation as to sentence at the guilty plea proceedings. The state disclaims the fact of any agreement that it would make no recommendation at the sentencing proceedings and asserts that there was no breach of the plea bargain agreement.

The issue here, thus, narrowly circumscribed and confined, is governed by certain well-defined principles which must be applied to the facts in this record. The law is now well settled that the "constant factor" in plea bargaining agreements "is 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 ". (Emphasis supplied). Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499(5), 30 L.Ed.2d 427 (1971).

In Santobello, as in the case at bar, it was shown that part of the plea bargain agreement was that the prosecutor would make no recommendation as to the sentence. Several months after the entry of the guilty plea pursuant to the agreement, the defendant appeared for sentencing. At that time, the defense counsel, judge and prosecutor were not the same persons involved in the guilty plea proceedings and the then prosecutor recommended to the court that the maximum sentence be imposed. Upon objection by defense counsel to this recommendation as violative of the previous agreement, the trial court stated that it would not be influenced, in any event, by the recommendation of the prosecutor and that any such recommendation did not "make a particle of difference" to the court. The maximum sentence was then imposed. This conviction was affirmed by the Supreme Court, Appellate Division of New York, 35 A.D.2d 1084, 316 N.Y.S.2d 194 (1970). Certiorari was granted by the Supreme Court of the United States, which court vacated the judgment and sentence, and in so doing, stated (404 U.S. at 262, 92 S.Ct. at 499(6)):

"On this record, petitioner 'bargained' and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. * * * " (Emphasis supplied)

The court remanded the cause to the New York state court to decide whether the circumstances of the case required that there be specific performance on the guilty plea "bargain", in which event the court stated that the "petitioner should be resentenced by a different judge", or whether the petitioner be granted the opportunity to withdraw his guilty plea.

At least three of the circuit courts of the United States have followed the lead of Santobello.

In United States v. Crusco et al., 536 F.2d 21 (3rd Cir. 1976), the defendant agreed to plead guilty to one count of the charge in return for the government's promise to drop the second count and also to take no position on sentencing on the first count. However, at the sentence hearing, the government attorneys attempted to portray the defendant as a major underworld criminal figure who was dangerous to have on the public streets. The court there said, l.c. 26:

"* * * We see the Government's characterization as a transparent effort to influence the severity of Cimmino's sentence * * * "

and permitted him to withdraw his guilty plea. The court further stated, in connection with the government's promise to the defendant to take no position on sentencing, l.c. 26:

"* * * Once it makes a promise, Santobello requires strict adherence. * * * "

In Dugan v. United States, 521 F.2d 231 (5th Cir. 1975), the court said, l.c. 233:

"It is axiomatic that no guilty plea that has been induced by an unkept plea bargain can be permitted to stand."

In Geisser v. United States, 513 F.2d 862 (5th Cir. 1975), the court, addressing itself to plea bargains, stated, l.c. 870-871:

"What we are saying is that the United States Government must in the light of the commitment made by its prosecutorial arm look carefully at the constitutional obligations owing Bauer. When it looks * * * all will see Santobello as a lion in the streets * * *

Thus, following Santobello, defaulted plea bargains must be remedied."

To like effect and adopting the rule in Santobello, see United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974).

The far-reaching principle of Santobello has been embraced by the Supreme Court of Missouri in State of Missouri v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976) where a plea bargain resulted in an agreement by the prosecutor that he would dismiss a charge of murder and accept a guilty plea of robbery in the first degree by means of a dangerous and deadly weapon. As a result of this agreement the defendant signed a confession to the robbery charge at the behest of his attorney. While the prosecutor did not effectively deny the agreement, he decided to try the defendant on both charges and was permitted to introduce the written confession to the robbery charge over the objection of defense counsel. Hoopes was convicted on both charges, appealed and his conviction was reversed upon the...