Smith v. State

• Decision Date: 26 August 2004
• Docket Number: No. 26115.,26115.
• Citation: 141 S.W.3d 108
• Parties: Richard S. SMITH, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

141 S.W.3d 108

Richard S. SMITH, Appellant, v. STATE of Missouri, Respondent.

No. 26115.

Missouri Court of Appeals, Southern District, Division Two.

August 26, 2004.

Appeal from the Circuit Court, McDonald County, Timothy W. Perigo, J Margaret M. Johnston, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Appellant Richard Smith ("Movant") was originally charged by information on July 17, 2001, with the class B felony of manufacturing a controlled substance as proscribed by section 195.211.¹ The information stated that "on or about the 26th day of May, 2001, in the County of McDonald, State of Missouri, [Movant] knowingly manufactured Methamphetamine, a controlled substance, by possessing equipment, precursors, and chemicals, iodine crystals, 7% iodine used to manufacture methamphetamine, knowing that it was a controlled substance." (emphasis in original omitted).

Movant's charge of manufacturing methamphetamine stemmed from a police search of a shed and adjacent mobile home in which the aforementioned precursors, equipment and chemicals for the manufacture of methamphetamine were found. The record does not show that any methamphetamine was found by the police.

On July 17, 2001, Movant appeared before the plea court and entered an Alford plea to the charge of manufacturing methamphetamine, pursuant to a plea bargain agreement.² Subsequent to the plea hearing Movant was sentenced to seven years in the Missouri Department of Corrections, but the plea court suspended the imposition of the sentence and placed Movant on five years probation. Movant's probation was subsequently revoked on October 16, 2002, due to new charges of attempted manufacture of methamphetamine and possession of ephedrine with the intent to manufacture methamphetamine. Movant's suspended sentence was then imposed.

On April 24, 2003, Movant filed a pro se motion pursuant to Rule 24.035.³ Appointed counsel later filed an Amended Motion. In his Amended Motion, Movant maintained there was no factual basis for his plea and requested the motion court to "either vacate the plea and set [M]ovant's case for trial or enter a conviction and sentence [M]ovant for the lesser included class C felony of creation of a controlled substance." The motion court denied Movant's Rule 24.035 motion on January 14, 2004. The motion court found that "Movant entered a plea of guilty pursuant to ALFORD decision. Said plea was accepted by Court and was made freely, voluntarily and intelligently. Court finds that statements of defendant and prosecutor at plea of guilty provided a sufficient factual basis of plea to be accept[ed]. Judgment denying motion ordered entered...."

Movant now appeals the denial of his Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.035. In his motion and on appeal, Movant maintains the plea court erred in accepting his guilty plea pursuant to an Alford plea to the charge of manufacturing a controlled substance because no factual basis existed for the plea. See Rule 24.02(e).

Appellate review of a trial court's action on a postconviction relief motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. White v. State, 57 S.W.3d 341, 343 (Mo.App.2001). They will be considered clearly erroneous if, upon review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

Rule 24.02(e) provides that "[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." Prior to accepting a plea of guilty, the trial court must "determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged." Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). "A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists." Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). "`A trial court is not required to explain every element of a crime to which a person pleads guilty so long as the defendant understands the nature of the charge.'" Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (quoting State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996)). However, Movant shall express "an awareness of the nature and elements of the charge to which he or she pleads guilty." Vann v. State, 959 S.W.2d 131, 134 (Mo.App.1998). "`[I]t is not necessary that the movant admit to, or even believe, the veracity of the elements of the charges against him in order for his guilty plea to be valid.'" Daniels, 70 S.W.3d at 461 (quoting Bird v. State, 657 S.W.2d 315, 316 (Mo.App.1983)). This court's "focus is on whether the plea was made intelligently and voluntarily" and not on "whether a particular ritual is followed or every detail explained." Id. "If the facts presented to the court during the guilty plea hearing do not establish the commission of the offense, the court should reject the guilty plea." Brown, 45 S.W.3d at 508.

An Alford plea is not treated differently than a guilty plea where the accused admits the commission of the crime charged. Wilson v. State, 813 S.W.2d 833, 843 (Mo. banc 1991). "As with any guilty plea, an Alford plea is valid if it `represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sexton v. State, 36 S.W.3d 782, 785 (Mo.App.2001) (quoting Alford, 400 U.S. at 31, 91 S.Ct. at 164, 27 L.Ed.2d at 167 (1970)). Accordingly, prior to accepting a plea of guilty or an Alford plea, the plea court was required to "`determine facts which [Movant] admits by his plea and that those facts would result in [Movant's] being guilty of the offense charged.'" Brown 45 S.W.3d at 508 (quoting Hoskin, 863 S.W.2d at 639) (emphasis added). "It is preferable to do more than to do less when establishing a factual basis for a plea." Daniels, 70 S.W.3d at 464.

In our review, we observe that on July 17, 2001, Movant appeared before the plea court. He filed a "Petition to Enter Plea of Guilty" in which he acknowledged that he had received a copy of the information against him; that he had been counseled by his attorney as to the nature of the charge and lesser included offenses, if any; and, that he was guilty of the offense charged. The written Alford plea was entered into evidence and the plea court "inquire[d] as to what facts [Movant] does admit."

The record reveals that a stipulation was entered that Movant had consented to the search of the shed and mobile home. The State then set out that Movant's girlfriend, Anna Trembley, also gave consent to search the shed and mobile home. During the plea hearing, Movant testified that as part of his job managing a mobile home park, he was given a mobile home to live in, but he had not yet moved in because the mobile home needed some repairs. Movant further testified that he had allowed "a guy [he] met in Joplin" to store some items in a shed that was located behind the mobile home. Movant acknowledged that he knew that the shed contained products used to manufacture methamphetamine, because he had looked inside; however, he indicated that he was "kind of overwhelmed with the amount of things" that the police seized from the shed. Movant also acknowledged to the plea court that he knew how to manufacture methamphetamine and that iodine, ephedrine, and red phosphorous were normally used in the process. Furthermore, when the plea court inquired as to whether Movant knew he had "some iodine," he answered, "I knew that the products were in that shed, yes, sir."

The prosecutor outlined the following facts to show that Movant committed the crime of manufacturing methamphetamine:

After the consent to search and the items were found, [Movant] ... admitted that he had been cooking it for his own use. And, also, the officer, Carl Cosper, talked to Anna Trembley, and she said [Movant] had been cooking methamphetamine in the shed behind the house.

. . .

[Movant] stated he bought items from different places; saved the receipts. He purchased tubings, chemicals, used in the manufacturing process. He gave a statement, said the meth lab was his, and he cooked it for his own personal use.

Then Movant informed the plea court that he had "tried to be completely honest" with the plea court and that Trembley's statements to the police were a result of her being "pretty scared because her daughter had been taken from her because of her ex-husband's activities in drugs, and she was really afraid of losing her daughter for good." With regard to the prosecutor's declarations that Movant had admitted cooking methamphetamine for his own personal use, Movant related, "[t]hat's not the way the statement that I made was intended. It was I had knowledge of how to manufacture, but I never admitted that it was mine, because it was not." He acknowledged that he had purchased acetone the previous day to clean some rusted tools, but asserted that the receipts the police found in his wallet were related to his work as a contractor.

The plea court then declared that "if you are not guilty of this offense, you don't have to enter a plea. You understand that?" Movant answered, "[y]es sir." The plea court then stated that "I can set this case as soon as your attorney can be ready for trial," and after a discussion of his procedural rights, the plea court, again, asked the Movant if he wanted "to exercise [his] right and have this matter set for jury trial?" Movant responded, "I would like to plead guilty under the Alford plead [sic]." After this, the plea court again reiterated, "do you want a jury trial?," and Movant responded, "[n]o sir." After subsequent discussion,...