State ex rel. K---D. C--- v. Copeland

• Court: Missouri Court of Appeals
• Writing for the Court: CROW; PARRISH, C.J., and SHRUM
• Citation: State ex rel. K---D. C--- v. Copeland, 852 S.W.2d 417 (Mo. App. 1993)
• Decision Date: 04 May 1993
• Docket Number: No. 18397,18397
• Parties: STATE of Missouri ex rel. K____ D. C____, Relator, v. Honorable Fred W. COPELAND, Circuit Judge, Respondent.

Page 417

852 S.W.2d 417

STATE of Missouri ex rel. K____ D. C____, Relator, v. Honorable Fred W. COPELAND, Circuit Judge, Respondent.

No. 18397.

Missouri Court of Appeals,

Southern District,

Division One.

May 4, 1993.

Marianne Marxkors, St. Louis, for relator.

Michael B. Hazel, Pros. Atty., Pemiscot County, Caruthersville, for respondent.

CROW, Presiding Judge.

The genesis of this original proceeding in prohibition is a murder and robbery allegedly committed by Relator, K____ D. C____, on August 1, 1988, in Pemiscot County. Relator was then 14 years of age. ¹

The question presented is whether the order of the juvenile court permitting Relator to be prosecuted under the general law is void because the juvenile court failed to comply with Rule 118.03, Rules of Practice and Procedure in Juvenile Court (1988), set forth infra. The rule requires that the written report mandated by § 211.071.6, RSMo 1986, set forth infra, be made available to counsel. An abbreviated history of the underlying litigation is helpful in framing the issue confronting us.

On August 2, 1988, the day after the alleged crimes, a juvenile officer filed a petition in the Juvenile Court ² of Pemiscot County, alleging Relator was in need of care and treatment because he committed the murder and robbery, and also committed armed criminal action by using a revolver in the murder. The juvenile court appointed counsel for Relator.

On a later date, not shown by the record, the juvenile officer filed a motion per § 211.071, RSMo 1986, ³ to dismiss the petition so Relator could be prosecuted under the general law.

On September 2, 1988, the juvenile court held a hearing on the juvenile officer's motion to dismiss. Relator was present in person and with appointed counsel ("D____"). At the outset, the juvenile court stated:

Let the record ... show that after listening to the evidence here today, the Court will not at that time make a ruling, but will rather take the matter under advisement pending receipt of the report required by Section 211.071, Subdivision 6, and that report presumably will be prepared in due course.

Lawyer D____ registered no protest regarding that procedure.

Testimony was presented by four witnesses. At the conclusion of the hearing, the juvenile court announced:

The Court will take this matter under advisement pending receipt of the appropriate report. Court's adjourned.

Again, lawyer D____ voiced no objection.

On September 6, 1988, the juvenile officer filed a written report "prepared in accordance with Section 211.071 RSMo." That same day, the juvenile court entered an order dismissing the juvenile officer's petition so Relator could be prosecuted under the general law.

Relator was thereafter charged with four felonies in the Circuit Court of Pemiscot County: (1) murder in the first degree, (2) armed criminal action by committing the murder with a deadly weapon, (3) robbery in the first degree, and (4) armed criminal action by committing the robbery with a deadly weapon. The case was subsequently sent to New Madrid County on change of venue.

On October 20, 1989, Relator appeared in the Circuit Court of New Madrid County with his lawyer ("C____"), an assistant public defender. The prosecutor announced a plea agreement had been reached whereby (1) Relator would plead guilty to murder in the second degree and robbery in the first degree, (2) the prosecutor would recommend concurrent life sentences for each of those crimes, and (3) the two counts of armed criminal action would be dismissed.

The trial court asked lawyer C____ whether he had explained the range of punishment to Relator. C____'s response included this: "I explained to [Relator] that Murder in the First Degree, as it was charged in the original information, provided for the punishment of life in prison without parole or probation, and no release except by order of the Governor, or in the alternative, the death penalty."

Relator pled guilty per the bargain; the trial court imposed the agreed sentences.

On January 18, 1990, Relator filed a pro se motion in the trial court per Rule 24.035, Missouri Rules of Criminal Procedure (1990), to vacate the conviction. Among the allegations was this averment: "I pleaded guilty because my lawyer told me I would get the death penalty."

An amended motion, filed later by counsel, alleged, inter alia, that lawyer C____ rendered ineffective assistance by failing to accurately advise Relator of the potential punishment should he be found guilty of murder in the first degree. Citing Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), ⁴ the amended motion stated that because the murder was committed when Relator was 14, the death penalty was not a possible punishment. The amended motion added that Relator's decision to plead guilty was premised on his desire to avoid death, and that had he been properly advised of the range of punishment, he "would have elected to proceed to trial in this matter."

The trial court denied postconviction relief without an evidentiary hearing. Relator appealed to this Court; the appeal was numbered 17210.

In this Court, the State, by the Attorney General, filed a "Motion for Reversal and Remand" stating that at the time Relator pled guilty, neither lawyer C____, the prosecutor, or the trial judge realized Relator could not be sentenced to death for murder in the first degree. The State's motion continued:

[Relator] pled guilty to murder in the second degree only after being misinformed about the possibility of receiving the death penalty for the murder in the first degree charge and thus it cannot be said that his guilty plea was knowingly intelligently and involuntarily [sic] entered.

The State prayed this Court to reverse the judgment in the 24.035 proceeding and remand it with directions that the trial court "grant [Relator] his Rule 24.035 motion."

On July 8, 1991, this Court, in an unreported order in appeal 17210, granted the State's motion, reversed the judgment in the postconviction proceeding, and remanded that proceeding to the trial court.

Relator commenced the instant prohibition action in this Court on September 28, 1992, averring he now faces "charges of murder in the first degree, robbery in the first degree, and two counts of armed criminal action" in the Circuit Court of New Madrid County, arising from the events of August 1, 1988. Respondent, The Honorable Fred W. Copeland, is the circuit judge before whom the charges are pending.

Relator maintains Respondent lacks jurisdiction to proceed with trial in that the report required by § 211.071.6 ⁵ was not submitted until after the September 2, 1988, hearing (described in the fifth paragraph of this opinion). According to Relator, this violated his rights to due process of law and effective assistance of counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and sections 2, 10 and 18(a) of Article I of the Constitution of Missouri (1945).

Rule 118 (referred to in the second paragraph of this opinion) pertains to dismissal of a petition against a juvenile in juvenile court to allow prosecution of him under the general law. Rule 118.03(a) provides that when the juvenile court orders a hearing on that issue, the juvenile officer "shall make an investigation to aid the court in determining whether the juvenile is a proper subject to be dealt with under the provisions of the Juvenile Code." Rule 118.03(b) reads:

A written report of the investigation, including all social records, shall be made to the court, and, prior to the hearing, may be made available to the parties and shall be made available to counsel.

Citing Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), Relator asserts that in a proceeding to determine whether juvenile jurisdiction shall be waived, thereby allowing the juvenile to be tried as an adult, the juvenile has a right of access by his lawyer to the social records and reports considered by the juvenile court.

In Kent, a 16-year-old suspect was apprehended for housebreaking, robbery and rape in the District of Columbia. Under the applicable Code, he was subject to the exclusive jurisdiction of the juvenile court. When it became apparent the juvenile court might waive jurisdiction and remit the suspect to the adult court for trial, the suspect's lawyer moved the juvenile court for a hearing on the waiver issue and also moved for access to the file compiled by court staff regarding the suspect (who had been on juvenile probation since age 14).

The juvenile court ignored the motions, held no hearing, and entered an order waiving jurisdiction. The order contained no findings and no reasons for waiver. The suspect was ultimately convicted in adult court of housebreaking and robbery. After an unsuccessful appeal to the United States Court of Appeals for the District of Columbia Circuit, the suspect obtained review by certiorari in the Supreme Court of the United States. The Supreme Court held the juvenile court order waiving jurisdiction was invalid. 383 U.S. at 552, 86 S.Ct. at 1053. Although declaring that the Juvenile Court Act applicable in the District of Columbia and the decisions of the United States Court of Appeals for the District of Columbia Circuit provided an adequate basis for its decision, 383 U.S. at 556, 86 S.Ct. at 1055, the Supreme Court went on to hold:

[W]e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel. 383 U.S. at 557, 86 S.Ct. at 1055.

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With respect to access by the child's coun...