Spencer v. State
| Decision Date | 29 August 1989 |
| Docket Number | No. 15953,15953 |
| Citation | 776 S.W.2d 428 |
| Parties | Troy Lynn SPENCER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Melinda K. Pendergraph, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
This is an appeal by Troy Lynn Spencer ("appellant") from a judgment denying his first amended motion under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987), 1 to vacate his conviction and 15-year prison sentence for the class B felony of sodomy, § 566.060, RSMo Cum.Supp.1984. The conviction resulted from appellant's plea of guilty.
In denying relief the circuit court ("the motion court") conducted no evidentiary hearing but did take into account the transcript of the proceeding at which appellant entered the plea of guilty, together with the transcripts of three subsequent proceedings that ultimately resulted in execution of the sentence appellant attacks. The judge who conducted those four proceedings was the Honorable Anthony J. Heckemeyer.
Appellant's brief presents one point:
"The motion court clearly erred in denying appellant's motion for post-conviction relief without granting an evidentiary hearing pursuant to Rule 27.26(e) on the issue of whether appellant was denied a fair and impartial judge during his guilty plea and sentencing because the record leaves a firm conviction that a mistake has been made in entering such judgment in that appellant pleaded factual allegations that ... Judge [Heckemeyer] was influenced by powerful persons, this fact was not refuted by the record as the transcript of the sentencing proceedings contained repeated references by the sentencing judge to powerful people and powerful interests who wanted appellant 'put away.' "
On June 28, 1985, an information was filed charging appellant with sodomy. On August 8, 1985, appellant, his lawyer, 2 and the prosecutor appeared before Judge Heckemeyer. Because of appellant's hypothesis of error it is necessary to set forth extensive excerpts from the transcript of that proceeding and later proceedings. The transcript of the August 8, 1985, proceeding shows:
"The Court: ... On 7-25-85 you ... entered a plea of not guilty. I am advised today that you wish to change that plea to guilty; is that correct?
[Appellant]: That's right.
The Court: When we first discussed this, I advised you that I had handled your case in the Juvenile Court; do you remember that?
[Appellant]: Yes, sir.
The Court: We did not have an evidentiary hearing at that time. Do you have any objection to me handling the case? I don't think I have any disqualifying knowledge of you other than the treatment program that you voluntarily entered into through that program, but if there is any problem, you certainly have the right for me to step down. I don't care either way.
[Appellant]: Your Honor, I am satisfied that your judgment would be just, and I hope merciful, and I am willing to lay down some of the things that might be preceded with in order to arrive at some final condition.
The Court: The Court finds that basically there was no evidentiary hearing of any kind. The Court had an ongoing juvenile file case which still is ongoing and Mr. Spencer is in treatment in that or in family counseling in that program. I find nothing disqualifying about that, but I certainly want to put it on the record and give Mr. Spencer every opportunity to have another judge appointed if he wanted.
Based on his statements that he does not want to, do you have any problem with that, Counsel?
[Appellant's lawyer]: No, sir; I do not, so long as Mr. Spencer is satisfied, I am satisfied."
Judge Heckemeyer began explaining to appellant the procedure for entering the plea. This colloquy ensued:
"The Court: How old are you?
[Appellant]: 35.
The Court: You are married and you have one child?
[Appellant]: Two children, sir.
The Court: What do you do for a living?
[Appellant]: I work as a hearing aid fitter.
....
The Court: How far in school did you go?
[Appellant]: I have nearly two years of college.
....
The Court: Has [your lawyer] done what you have asked him to do?
[Appellant]: Yes, Your Honor.
The Court: Is there anything you have asked him to do that he has not done?
[Appellant]: No, Your Honor.
....
The Court: Are you satisfied with his work?
[Appellant]: Yes, sir.
....
The Court: Has anyone threatened you, harmed you or mistreated you or any member of your family in any way to get you to make this plea?
[Appellant]: No, Your Honor.
The Court: Do you make the plea of your own free will because you did the things that you are charged with?
[Appellant]: Yes, Your Honor.
[Appellant]: Substantially correct, Your Honor.
[Appellant]: Your Honor, I did understand through my attorney that with a plea of guilty, that the prosecutor ... had no objection to probation being exercised.
[Appellant]: Well, I didn't, but I do now.
The Court: If a plea bargain is offered the Court, I can accept it or refuse it. I am not bound by it. But if I accept it and deviate from the terms of it, I have to go back from this point again and tell you that I will not accept it, and then you will have the opportunity to withdraw your plea. That's really what a plea bargain is. It doesn't bind the Court, but in this case the prosecutor is standing mute. He is not offering a plea bargain.
[Appellant]: I accept that, Your Honor."
Judge Heckemeyer then informed appellant of the range of punishment (imprisonment for a term of years not less than five and not to exceed fifteen), and explained a number of appellant's rights. Then, this:
"The Court: ... If I accept your plea, these rights we have talked about are gone. You will have them no longer. There will be no trial....
Knowing that, do you still wish me to accept the plea?
[Appellant]: Your Honor, I don't wish to wrestle against anyone. I wish to have judgment tempered with, I hope, mercy, for I hope--well, you said earlier that no one standing where I stand is ever going to do it again. I have nothing to add to that.
The Court: Basically, you do want me to go on and accept the plea of guilty?
[Appellant]: Please do."
Judge Heckemeyer found that appellant's plea of guilty was made voluntarily and intelligently and with full understanding of the charge and consequences of the plea and of the rights Judge Heckemeyer had explained. Judge Heckemeyer further found there was a factual basis for the plea. Judge Heckemeyer accepted appellant's plea of guilty, found appellant guilty of the class B felony of sodomy, and ordered a presentence investigation. Appellant, free on bond, remained at liberty.
Some three months later, on November 14, 1985, appellant, his lawyer, and the prosecutor reappeared before Judge Heckemeyer, at which time the judge sentenced appellant to 15 years' imprisonment followed immediately by this:
"The Court: ... Now, Mr. Spencer, I am going to place you on probation. It is going to be a different kind of probation than some.... I will place you on probation on the condition that you attend and successfully complete the--I don't know the name of it, but is an offender program the Division of Probation and Parole has in Fulton. At the completion of that program, you will be put back into the family and into the community. I want you to continue your supervision with Mr. Brown, the person that's working with you.... And I am sure your family will continue in the meantime to receive counseling that they have.
Now, that is a strange sentence in a way, Mr. Spencer. You are not of this world. You are a first timer, and yet you draw a maximum sentence, but yet you don't go to jail. See, it's sort of a compromise of all the different elements. There are many people that believe you should be put away. There are people who in the interest of your family do not believe that you should be put away. There are people that believe if I put you away, that your daughter will wind up being the person that carries the guilt burden through her life, which I suspect is true. Only you can control that. I suspect the counselers [sic] will tell you about that.
I have no great desire to see you incarcerated. Perhaps you are someone that they can salvage. They advise me that you are smart enought [sic] and capable, that if they can work with you, everything will be fine, and I suspect your family needs you bad enough that I am not going to take you out a long time, but I have given the people who need the protection a mighty weapon that they can use if they have to. That is, you have no doubt that if you appear before this Court again I will sentence...
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Spencer v. State
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