Smith v. State

• Citation: 513 S.W.2d 407
• Decision Date: 22 July 1974
• Docket Number: No. 58559,58559
• Parties: Leon SMITH, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

Page 407

513 S.W.2d 407

Leon SMITH, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 58559.

Supreme Court of Missouri, En Banc.

July 22, 1974.

Rehearing Denied Sept. 9, 1974.

Donald L. Schmidt and Christopher T. Hexter, Legal Aid Society of St. Louis, St. Louis, for appellant.

john C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Judge.

On November 8, 1971, movant (hereinafter referred to as defendant) entered a plea of guilty to a charge of second degree murder and was sentenced to imprisonment for a term of 19 years. On September 11, 1972, he filed a motion to vacate his sentence pursuant to Rule 27.26. The trial court thereafter appointed an attorney for movant and set the motion for hearing. Before any hearing was held, however, the State filed a motion to dismiss which was sustained by the court. Movant appealed to the Court of Appeals, St. Louis District. That court adopted an opinion which reversed the judgment and remanded the case with directions to hold an evidentiary hearing and to make findings of fact and conclusions of law. Upon application of respondent we ordered the case transferred to this court. It will be determined here the same as on original appeal. We affirm.

Defendant's motion alleged the following grounds: '1. Ineffective assistance of counsel. 2. Plea of guilty was involuntary, and was made under duress and coercion. 3. That movant was incompetent to plead bacause of drug addiction.' As grounds to support said contentions he stated the following: '1. Lawyer threatened defendant with 175 years if he should stand trial. 2. Lawyer did not investigate all possible defenses, (only used Circuit Attorneys file) and ignored defendant's claims of innocence. 3. Defendant was denied discovery due to his poverty. 4. Lawyer was not a criminal attorney. 5. Duress consisted of confinement in the City Jail for 22 months. 6. Was in jail 90 days before counsel was appointed. 7. Defendant was frustrated in his efforts to have the indictment quashed because the Grand Jurors were not of his peers. 8. Defendant was wounded. 9. Defendant was incompetent to plead one way or the other due to his drug addiction and psychological breakdown.'

At the time defendant entered his plea of guilty he was questioned extensively by the court. He stated that he desired to interrupt the selection of the jury for his trial and to enter a plea of guilty to the reduced charge of murder in the second degree. He further stated that within the last week he had spent many hours discussing the case with his attorneys; that he had had the advice of his attorneys and was satisfied with the advice they had given him; that he understood that by pleading guilty he was waiving his right to a trial by jury; that he understood that he had a right to trial and to be confronted by the witnesses and that he was waiving that right; that he was not under the influence of any drugs at that time and had had no withdrawal symptoms during the past six months; that he was entering his plea of guilty of his own free will.

After the assistant circuit attorney had made a statement concerning the facts involved in the case the defendant was questioned by the court in regard thereto. He stated that he entered a liquor store in the company of another man; that he had a pistol in his possession and that the other man was carrying a sawed-off shotgun and it was their intent to rob the store; that the robbery was unsuccessful because the owner shot him in the leg; that he then shot the owner with his pistol and the owner was pronounced dead upon arrival at the hospital; that he fled and was taken by a friend to a hospital in East St. Louis where we was arrested shortly thereafter.

At the hearing it was disclosed that defendant's attorneys had filed certain proceedings in the Supreme Court of Missouri and also in the United States Supreme Court in an effort to secure certain rights for defendant. In explaining the delay in the case, one of the defendant's attorneys stated that the State had always been ready to try the case but that the delay was caused by their efforts in behalf of the defendant.

Respondent in its motion to dismiss called attention to our holding in Colbert v. State, 486 S.W.2d 219 (mo.1972) and then stated the following: 'An examination of the above-mentioned guilty plea and sentencing in Cause No. 463--S, shows that established minimum standards have been far-exceeded by this Honorable Court in the acceptance of the guilty plea. There can be no question as to movant-defendant's understanding of the charges, his right to a jury trial, his actions being sufficient to constitute the offense for which he is being charged, and the possible sentence which the movant-defendant is subjecting himself by reason of his guilty plea.

'The record of November 8, 1971 clearly shows the voluntariness of movant-defendant's guilty plea and said record conclusively shows that movant-defendant is entitled to no relief under Rule 27.26 (V.A.M.R.).'

The main contention of defendant here is that the trial court erred in failing to grant him an evidentiary hearing on his motion. He says that the fact that a trial court has complied with Rule 25.04 does not foreclose it from later holding an evidentiary hearing to determine the voluntariness of the plea. A determination of that question requires a review of the applicable rule and recent state and federal cases that have considered the subject.

Rule 25.04 contains the following: 'A defendant may plead not guilty or guilty. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.'

Federal Rule 11 which is often mentioned in the cases contains a similar requirement in the following language: 'The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.' In Colbert v. State, 486 S.W.2d 219, 220, 221 (Mo.1972) this court endeavored to settle the question as to when a hearing is required. Therein, we quoted from State v. Turley, (8th Cir. 1971) 443 F.2d 1313, as follows: 'Rule 11 is, of course, not applicable in state proceedings. Nevertheless, once it has been established that a state court has, at the time of accepting a guilty plea, elicited sufficient information from the parties so that the propriety of accepting the plea is eatablished in a manner analogous to the dictates of Rule 11, and an adequate record is made thereof, the occasion for setting aside a guilty plea should seldom arise. United States v. Rawlins, supra (, 440 F.2d 1043). The ascertaining of such information and the recording thereof are not exercises in futility.' After reviewing the record this court held in Colbert that no evidentiary hearing had been necessary because Rule 25.04 had been complied with; that the guilty plea record conclusively showed appellant was not entitled to relief and that record was 'sufficient to insulate the convictions from subsequent attack in federal habeas corpus proceedings.'

Shortly after Colbert the Supreme Court of the United States ruled in Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed,2d 169 (1973) that in the Sec. 2255 proceeding before it a hearing was required even though Rule 11 had been complied with. Therein the court stated: 'We need not take issue with the Government's generalization that when a defendant expressly represents in open court, without counsel, that his plea is voluntary and that he waived counsel voluntarily, he 'may not ordinarily' repudiate his statements to the sentencing judge. The objective of Fed.Rule Crim.Proc. 11, of course, is to flush out and resolve all such issues, but like any procedural mechanism, its exercise is neither always perfect nor uniformly invulnerable to subsequent challenge calling for an opportunity to prove the allegations.

'On this record, we cannot conclude with the assurance required by the statutory standard 'conclusively show' that under no circumstances could the petitioner establish facts arranting relief . . .'

Two weeks after Fontaine the Supreme Court decided Tollett v. Henderson, 411 U.S. 258, at l.c. 266, 267, 93 S.Ct. 1602, at 1608, 36 L.Ed.2d 235 (1973) wherein it is stated that 'If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advise was not 'within the range of competence demanded of attorneys in criminal cases,' McMann v. Richardson, * * * 397 U.S. (759,) 771 (, 90 S.Ct. 1441, 25 L.Ed.2d 763). * * * When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within in the standards set forth in McMann.'

Following our decision in his case Colbert filed a habeas corpus proceeding in the U.S. District Court (W.D. of Mo.) and that court construed our opinion, supra, as being in conflict with Fontaine. At the direction of that court the Attorney General filed a motion requesting that we vacate our opinion and docket the case for resubmission. In Colbert v. State, 496 S.W.2d 12 (Mo.1973) we overruled that motion. Therein we distinguished the two cases and pointed out, l.c. 13 that: '. . . the Fontaine decision is not applicable to the situation in Colbert. Fontaine was not represented by counsel. His petition alleged that his plea of guilty was coerced and for that reason it was not a voluntary plea. He...