State v. Carter
| Decision Date | 14 February 1966 |
| Docket Number | No. 2,No. 51696,51696,2 |
| Citation | 399 S.W.2d 74 |
| Parties | STATE of Missouri, Respondent, v. Paul A. CARTER, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
Paul A. Carter, appellant pro se.
STOCKARD, Commissioner.
Defendant has appealed from the order of the trial court, entered without a hearing, denying his motion filed pursuant to Criminal Rule 27.26, V.A.M.R.
The transcript shows that on January 20, 1963, defendant entered a plea of guilty to the charge of obtaining property by use of a check drawn on a bank in which he knew he had no funds, and he was sentenced to imprisonment for a term of three years.
The Attorney General has filed a motion to dismiss the appeal as moot, and has attached thereto a certified copy of an order by the Governor commuting the challenged sentence to a term ending September 4, 1965. The file indicates that defendant has thereafter been held in confinement pursuant to a sentence for a separate and different offense, and the validity of that sentence is not challenged in this proceeding.
The relief authorized by Criminal Rule 27.26 is limited to a 'prisoner in custody under sentence' who (1) claims a right to be released from the custody imposed by reason of that sentence, or (2) who claims to have a right to have the sentence reduced on the ground that the sentence was in excess of the maximum authorized by law. State v. Brookshire, Mo., 377 S.W.2d 291. Defendant is not and has not since September 4, 1965, been in custody by reason of the sentence he seeks to challenge in this proceeding. By his motion he challenges the validity of the sentence and seeks to be released from the custody imposed pursuant thereto, but he has now received from the executive branch of the state everything he could receive by resorting to Criminal Rule 27.26. In this factual situation, we held in State v. Brookshire, supra, that an appeal from an order denying a motion filed pursuant to Criminal Rule 27.26 was moot after the prisoner had been unconditionally released from the custody imposed pursuant to the challenged sentence.
In this case when the motion to dismiss the appeal was served on defendant he requested that this court consider the merits of his challenge of the validity of the three-year sentence, and while he did not specifically express his request as we state it, the substance was that we should now consider the motion which was filed pursuant to Criminal Rule 27.26 as an application for a writ of error coram nobis. Such a request was not made in the Brookshire case. In State v. Stodulski, Mo., 298 S.W.2d 420, 424, this court held that a motion by a defendant in which he seeks relief from what he asserts to be an invalid sentence is not to be determined by the name given to it, but rather upon the facts alleged and the relief sought, and that 'a writ of error coram nobis is available to attack a judgment of conviction, even after the sentence thereunder has been served.' It was further held that the availability of the writ of error coram nobis to challenge the validity of a sentence already served should be limited 'for the cause or causes specified in Rule 27.26 and provided further that the trial court shall first examine the motion and the files and records in the case and refuse the writ (the hearing) in those cases where, from such examination, it appears that petitioner is entitled to no relief.' It appears that in this case the basis for the requested relief is for a cause specified in Criminal Rule 27.26, the trial court has examined the application for relief (whether it be denominated a motion filed pursuant to Criminal Rule 27.26 or an application for a writ of error coram nobis), and from its examination of the application and the files and records the trial court has found that defendant is not entitled to relief. On this appeal we shall consider the allegations in the motion as though contained in an application for a writ of error coram nobis, and upon the record before us determine whether the defendant is entitled to a hearing on that application.
Defendant alleged that he 'was tried and sentenced without benefit of counsel,' and that 'he was forced (by threats of long imprisonment) to deny his right to counsel and enter a plea of guilty.' He further alleged that the prosecuting attorney informed him that two 'other charges' would be filed against him if he 'failed to co-operate,' that 'the total amount of all three charges would amount to approximately twenty years in confinement, but if the petitioner cooperated, the prosecutor would file only one of the charges and recommend only three years.'
Criminal Rule 29.01 provides that in every criminal prosecution in any court of this state the accused shall have the right to appear and defend the same in person and by counsel, but, 'If, after being informed as to his rights, the defendant indicates his desire to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel unless it appears to the court that, because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant.'
The record on this appeal shows that when defendant appeared before the trial court on June 20, 1963, he stated that he was 33 years of age and previously had been convicted or had pleaded guilty of two offenses; as stated by the defendant, 'Once for bad checks and once for stolen property across the state line.' The trial court explained the charge against defendant, stated that it was a felony, and told the defendant the authorized punishment. The record also shows the following:
'
The assistant prosecuting attorney, when asked for comments, stated that he recommended 'a sentence in the penitentiary of three years.' The court then asked the defendant: 'Anything you want to say about it, Mr. Carter, anything that hasn't been mentioned or anything different to what has been said?' The defendant replied, 'No, sir.' Later, the court again asked the defendant if there was 'anything else you want to say,' and the defendant volunteered the statement that 'I believe there's a warrant for me in Illinois.' The court then announced that 'the judgment and sentence of the court is that you be confined in custody of the department of correction for a term of three years.' In the judgment entered of record, there is the express recital that 'after interrogating the defendant the court finds that the defendant is mentally capable and sufficiently informed to decide his need for counsel,' and that 'failure to appoint counsel will not work injustice to the defendant.'
Since no hearing was held in the trial court we will assume for the purpose of this appeal that defendant's allegation that the prosecuting attorney told him that if he would 'cooperate' only the one charge would be filed against him instead of three separate charges. However, we note that defendant does not allege that he was thereby induced to plead guilty when he was in fact not guilty, and he does not allege that the prosecuting attorney would not have been justified in filing the other two charges against him. In fact, when he was being questioned by the trial court he was asked, 'Did you write some other checks that had no money in the bank to cover them also?' and the defendant replied, 'Yes, sir, I did,' and 'I believe three, sir.'
A defendant may waive his right to counsel and enter a plea of guilty when he does so with an intelligent understanding of his act. State v. Glenn, Mo., 317 S.W.2d 403; State v. McDonald, Mo., 343 S.W.2d 68. Defendant does not allege facts which bring into issue his mental ability to understand what was going on, and he does not allege facts from which it could be found that the prosecuting attorney acted wrongfully in that he would have not been justified in filing two other charges against him. The allegations do not support a claim of misrepresentation as to possible punishment, or entrapment, or that the recommendation was not carried out. The contention of d...
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...but the necessity of making the choice did not constitute wrongful coercion or duress within the meaning of the law. State v. Carter, Mo.Sup., 399 S.W.2d 74, 78. As stated in State v. Freedman, Mo.Sup., 282 S.W.2d 576, 581, 'Appellant exercised his own volition and choice with a full knowle......
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