State v. Cowan, 42509
| Decision Date | 10 March 1981 |
| Docket Number | No. 42509,42509 |
| Citation | 615 S.W.2d 510 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Kevin Engler COWAN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James M. Martin, Mark R. Bahn, Martin, Bahn & Cervantes, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant pleaded guilty and was convicted of leaving the scene of an accident in violation of §§ 564.450 and 564.460, RSMo 1969 1 and was sentenced to one year in the St. Louis County jail. Appellant filed a motion to withdraw his guilty plea and vacate the sentence. He appeals from the trial court's denial of his motion.
Appellant asserts that the trial court erred in three respects when it denied the motion. First, appellant contends that the trial court did not follow the recommendation of the prosecuting attorney or the Division of Probation and Parole based on plea negotiations and that he was misled and induced to plead guilty by mistake; further that it would be manifestly unjust to sentence the appellant in the absence of a jury trial. Second, appellant argues the trial court erred in failing to inquire diligently into the appellant's expectations and assurances relating to punishment which would have revealed that appellant entered his plea of guilty on the assurance that he would receive a suspended imposition of sentence. Third, appellant urges that the trial court erred in not permitting him to withdraw his guilty plea because the plea was equivocal on its face. These points are ruled against appellant and the judgment affirmed.
Appellant's motion was made pursuant to Rule 27.25. 2 Appellate review of a denial of a motion to withdraw a guilty plea is limited to a determination whether the ruling of the trial court was clearly erroneous or whether there was an abuse of discretion, and the burden is on the appellant to prove by preponderance of evidence that the trial court erred in denying the motion. State v. Neilsen, 547 S.W.2d 153, 158(1-4) (Mo.App.1977).
Appellant charges in his first point that he was misled into pleading guilty, that the trial court did not follow the recommendation of the prosecuting attorney or the probation and parole officer and that it would be manifestly unjust to sentence the appellant to imprisonment for one year. The point has no merit.
Appellant's position is that during the plea negotiations some agreement was reached that he would be given a suspended imposition of sentence or at the very least placed on probation. The record does not support this argument. No plea agreement was ever reached. The state made no sentence recommendation. The state initially had opposed a suspended imposition of sentence but later in the plea negotiations dropped its opposition. The prosecuting attorney at sentencing told the court the state had an open recommendation with no opposition to a suspended imposition of sentence.
The following questions were asked and answered during the guilty plea proceedings:
"Q. (by the Court) Mr. Cowan, you heard the prosecutor tell us what the range of punishment is for this particular offense. Do you realize on a plea of guilty I can sentence you to the maximum or to the minimum amount or anywhere in between?
A. Yes, Sir.
Q. And you still wish to enter a plea of guilty considering this?
A. Yes, Sir."
Appellant says he was misled and induced to plead guilty by mistake, but the record does not disclose any promises or agreements which would justify appellant in a belief that he was assured of a suspended imposition of sentence or probation. Perhaps his counsel wanted to believe this, but there was no promise or agreement, only an understanding that the state would have an open recommendation. Appellant said he understood he could receive the maximum or minimum sentence or anywhere in between.
The only evidence of mistake or a misleading of the appellant during the plea negotiations was appellant's own subjective statements during the hearing on the motion to withdraw the guilty plea and the subjective statements of counsel.
The trial court had no recommendation from the prosecuting attorney to follow. The probation and parole officer recommended probation with a stipulation that the client attend Alcoholics Anonymous. There was no requirement that the trial court follow that recommendation. In fact, however, the trial court did in its sentencing state that it would review the case in 60 days with the prospect of granting parole at the end of 60 days.
The presentence investigation also disclosed that appellant had had an arrest for driving while intoxicated on October 18, 1976 for which he was given a suspended imposition of sentence and placed on probation for one year and that at the time of the investigation of the current charge he had a pending driving while intoxicated charge in Crestwood, St. Louis County, Missouri.
Appellant relies on two cases to support this point, Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978) and State v. Williams, 361 S.W.2d 772 (Mo. banc 1962). These cases are distinguishable. In Schellert the state actually made a recommendation of probation instead of making an open recommendation as it did in the case under review.
In Williams the charge involved was rape and the defendant was sentenced to death after the state had withdrawn its charge against the defendant under the habitual criminal statute. Withdrawal of a charge under the habitual criminal statute is different from withdrawal of opposition to a suspended imposition of sentence.
There was no manifest injustice because there was no defective plea. Appellant's first point is ruled against him.
Appellant next complains that the trial court erred in accepting appellant's guilty plea without first inquiring into the appellant's expectations...
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Brown v. State
...effective January 1, 1980, and is identical in form and content to former Rule 27.25, which it replaced. See State v. Cowan, 615 S.W.2d 510, 511 n. 2 (Mo.App. E.D.1981). While neither rule sets out the procedures to be followed in seeking to withdraw a guilty plea, at least since 1967 this ......
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State v. Abernathy
...Only if the trial court's ruling was erroneous or if there was an abuse of discretion will the plea be set aside. State v. Cowan, 615 S.W.2d 510, 511 (Mo.App.1981); State v. Nielsen, 547 S.W.2d 153, 158 (Mo.App.1977). The burden of proof rests on the defendant to show by a preponderance of ......
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State v. Hasnan, WD
...withdrawal of the guilty pleas, we must decide whether the trial court abused its discretion or was clearly erroneous. State v. Cowan, 615 S.W.2d 510, 511 (Mo.App.1981). Further, the defendant bears the burden of proving, by a preponderance of the evidence, error in the motion court's rulin......
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State v. Galvan
...Only if the trial court's ruling was erroneous or if there was an abuse of discretion will the plea be set aside. State v. Cowan, 615 S.W.2d 510, 511 (Mo.App.1981); State v. Nielson, 547 S.W.2d 153, 158 (Mo.App.1977). The burden of proof rests on the defendant to show by a preponderance of ......