State of Missouri v. Turley, 20509.

• Citation: 443 F.2d 1313
• Decision Date: 18 May 1971
• Docket Number: No. 20509.,20509.
• Parties: STATE OF MISSOURI, Appellant, v. Virgil Lewis TURLEY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

443 F.2d 1313 (1971)

STATE OF MISSOURI, Appellant, v. Virgil Lewis TURLEY, Appellee.

No. 20509.

United States Court of Appeals, Eighth Circuit.

May 18, 1971.

Gene E. Voigts, Asst. Atty. Gen., Jefferson City, Mo., for appellant.

Lewis E. Pierce, Kansas City, Mo., for appellee.

Before MEHAFFY and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.

STEPHENSON, Chief District Judge.

This is an appeal in a habeas corpus action filed by appellee Virgil Lewis Turley in the United States District Court for the Western District of Missouri. The petition alleged in substance, inter alia, that when before the Circuit Court of Jasper County, Missouri, on charges of burglary and larceny, Turley was (1) denied effective assistance of counsel which was requested at all proceedings against him, including preliminary examination, arraignment, plea and sentencing, and (2) his plea of guilty was coerced, in that, it was not knowingly and voluntarily entered. The District Court held that Turley's right to effective assistance of counsel had been violated thus rendering his plea of guilty involuntary and for that reason granted habeas corpus relief. The State of Missouri prosecuted this appeal assigning as error the District Court's ruling that Turley's plea of guilty was involuntary because of ineffective assistance of counsel.

The facts giving rise to this action date from May 30, 1965, when Turley was arrested and taken into custody by the Joplin Missouri Police Department as a result of information in possession of Joplin police officers that a person fitting Turley's description was wanted in Kansas City, Missouri. When he was arrested, Turley had a key in his possession that fit an automobile that was parked across the street from the bus station where he had been apprehended. The next day, June 1, 1965, Turley opened the car and identified the items therein and told the police officers where he had come from. That same day, a complaint was filed by the Prosecuting Attorney of Jasper County, Missouri, charging Turley with burglary and stealing in that County. A preliminary hearing was held before a magistrate on June 9, 1965. As a result of that hearing, Turley was bound over to the Jasper County Circuit Court for trial. On June 10, 1965, an information was filed by the Prosecuting Attorney of Jasper County charging Turley with burglary and larceny. On June 14, 1965, Turley entered pleas of guilty to the charges and was sentenced to terms of four years for burglary and three years for stealing, the sentences to run consecutively.

In connection with the criminal proceedings against Turley, as described in the prior paragraph, he was not represented by counsel until approximately 15 to 30 minutes before the time of entry of his guilty pleas. This practice is, of course, not recommended or encouraged. It is to be condoned only under exceptional circumstances. Turley's case, aside from the criminal proceedings against him, has now been twice before the Circuit Court of Jasper County on motions to vacate and set aside the sentence, twice before the Supreme Court of the State of Missouri on appeal, twice before the United States District Court for the Western District of Missouri, and is now before this Court on appeal.

On November 9, 1967, Turley filed his second motion to vacate judgment under Rule 27.26 of the Supreme Court of the State of Missouri, V.A.M.R. in the Circuit Court of Jasper County, Missouri. The next day, November 10, 1967, Jon Dermott of Joplin, Missouri, was appointed attorney for the movant pursuant to Rule 27.26. Thereafter on January 29, 1968, an Amended Motion to Vacate Judgment under Rule 27.26, setting forth in substance allegations identical to those plead in the United States District Court for the Western District of Missouri and now the subject of this appeal, was filed in the Circuit Court of Jasper County. A hearing was held on the Motion to Vacate Judgment before the Honorable Ray E. Watson, Judge of the Circuit Court of Jasper County, on or about April 2, 1968. It could not be said, nor seriously contended, that the hearing held in connection with Turley's motion was so insufficient as to cause this case to fall outside the dictates of Section 2254 of Title 28, United States Code and Townsend v. Sain, 372 U.S. 293 (1963). Turley was represented by his counsel Mr. Dermott during the entire proceeding, was allowed his witnesses and was allowed to testify freely himself. The quality of Mr. Dermott's representation is reflected by the record.

At the conclusion of the hearing, Judge Watson dictated his findings of fact and conclusions of law into the record. It is evident from the record that Judge Watson had had considerable experience, having served on the bench from 1935 until 1944 and again from 1959 to the time of the hearing in this case in 1968. Judge Watson stated the following findings of fact and conclusions of law which are pertinent for this present case:

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Now, the moving factor in this case wasn\'t the prosecuting attorney, it wasn\'t Mr. Burress the defendant\'s attorney, the moving person in this plea of guilty was the defendant, Virgil Lewis Turley. He\'s the man who wanted to enter the plea of guilty. It happens that his preliminary hearing had been held two days after the June term of Circuit Court at Carthage had commenced June 9, 1965 and therefore he was bound over to the September term of Court and from his own testimony he says that he was informed that he\'d have to spend the summer in the County Jail and wait until the September term of Court and he\'s the person that told the Prosecuting Attorney that he wanted to enter a plea of guilty and start serving his time and for that reason he was brought in here not on a day when we have regular criminal cases but on a regular court day which was Monday, June 14th.

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* * * And as I have said before, all of this came up because he Turley was the moving factor in this situation and the Court finds that the defendant Turley was properly represented by counsel; that he voluntarily and of his own accord, not only entered a plea of guilty but asked the Prosecuting Attorney to have him brought over here so he could enter a plea of guilty so he didn\'t have to remain in the County Jail during the summer months. He fully understood the charge that was brought against him, there was no question about the sentence. * * * The recommendation was seven years and Turley stood right here before the bench and heard that recommendation and for him to say now he thought it was going to be four years is just a misunderstanding on his part to say the least, which has occurred since the Court sentenced him and since he\'s filed these motions. The motion will be overruled.

It is obvious from a review of the record made of the hearing on Turley's Rule 27.26 motion and Judge Watson's findings and conclusions made in connection therewith, that Judge Watson did not believe certain portions of the testimony given by Turley at the hearing. He could, of course choose to disbelieve all the evidence introduced by Turley at the hearing. In any event, he is the only Judge who has actually seen the witnesses and heard first hand the evidence now before this Court in this case.

The findings of fact of a state court hearing on an application for a writ of habeas corpus by a state prisoner evidenced by adequate written indicia are, of course, presumed correct unless, discounting several factors not applicable here, the federal court on a consideration of the applicable part of the record as a whole concludes that such a factual determination is not fairly supported by the record, and, in an evidentiary hearing in a proceeding in federal court, when due proof of such factual determinations have been made, the burden rests upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous, unless the Court concludes that the record in the state court proceeding considered as a whole, does not fairly support such factual determination or unless the applicant establishes certain facts and circumstances not present here. 28 U.S.C. § 2254.

We accept as settled the fact that one of the reasons Turley plead guilty when he did was because he did not want to stay in the county jail and await the September term of court. He did not ask or want his Court appointed attorney to pursue his case further. The only thing Turley was interested in doing was pleading guilty.

The record here evidences that there was another prime factor motivating Turley's desire to plead guilty to burglary and larceny charges in Jasper County in 1965. He had an understanding with the Prosecuting Attorney for Jasper County as to a recommendation concerning the charges in Kansas City upon which Turley had been originally apprehended. It was understood that if Turley plead guilty, the Kansas City charges would be "dumped." Turley thought the Kansas City charges were much worse than those he faced in Jasper County. He thought he was faced with a kidnap charge in Jackson County that would carry something like twenty years. Turley also feared, as a result of his four previous felony convictions, that he might be charged as an habitual criminal and get a long sentence. It should also be recalled that Turley had the key to a stolen car in his possession when he was apprehended. In short, some serious plea bargaining had taken place between Turley and the Jasper County Prosecutor. It is worthy of notation that the charges against Turley in Kansas City were eventually dropped and no habitual criminal charges or charges in connection with the stolen car were ever filed against him.

The bone of Turley's contention in this case is that his plea of guilty was not voluntarily and knowingly made. This, it said, is because he was denied effective assistance of counsel. And, counsel was ineffective because he did not...