State v. Creamer

• Decision Date: 10 May 2005
• Docket Number: No. WD 63334.,WD 63334.
• Citation: 161 S.W.3d 420
• Parties: STATE of Missouri, Respondent, v. William C. CREAMER, Appellant.
• Court: Missouri Supreme Court

161 S.W.3d 420

STATE of Missouri, Respondent, v. William C. CREAMER, Appellant.

No. WD 63334.

Missouri Court of Appeals, Western District.

May 10, 2005.

COPYRIGHT MATERIAL OMITTED

Ruth Sanders, Appellate Defender Office, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Richard Starnes, Office of Attorney General, Jefferson City, for respondent.

RONALD R. HOLLIGER, Judge.

William Creamer appeals his conviction after jury trial of assault in the first-degree. He contends that the trial court plainly erred when it sua sponte set aside his previously accepted guilty plea to the reduced charge of second-degree assault based on statements he made in a presentencing investigation (PSI) report. We agree, reverse his conviction for the offense of first-degree assault, and remand for sentencing on his guilty plea to second-degree assault.

Factual and Procedural Background

Creamer was originally indicted with the separate and unrelated offenses of first-degree assault and second-degree robbery. A plea agreement was reached which, in relevant part, would reduce the assault charge to the offense of assault in the second degree and he would plead guilty to attempted robbery. An amended information was filed prior to the plea hearing on March 3, 2003, in accordance with that agreement. The only other part of the plea agreement was that the sentences would run concurrently with each other but that the plea judge¹ would have no restrictions regarding the available range of sentencing for either charge.

The robbery charge was resolved by a conventional guilty plea, while the assault charge plea was conducted as an Alford plea.² Creamer admitted that, based upon the evidence the State could adduce, a jury could convict him of the more serious offense of assault in the first degree. He further testified that, based upon that risk, he believed that it was in his best interests to accept the offered plea agreement to the reduced charge of second-degree assault. At the conclusion of the plea proceedings, the trial court accepted Creamer's pleas to both offenses without qualification and ordered the case set for sentencing on April 3, 2003. It also entered an order adjudging Creamer to be guilty of the crimes and ordering a pre-sentence investigation.

Creamer made statements to the official conducting the pre-sentence investigation that he did not commit either offense. During the sentencing hearing on April 3, the trial court sua sponte set aside Creamer's guilty pleas to both the assault and robbery charges, stating:

I ordered a Presentence Investigation[.] I'e received that Presentence Investigation and in reviewing that investigation[,] you have taken the position adamantly with the probation officer who wrote this report that you are not guilty of either of these offenses.

In view of that position, this court is not willing to accept your pleas of guilty on either of these charges. If you are contending that you are not guilty, you have the right to present that contention to either a jury of 12 people or to the Court in a trial where the State will be required to prove evidence that you are guilty beyond a reasonable doubt, and I am going to decline to accept a plea of guilty under these circumstances.

The State indicated on the record that it intended to file an amended information recharging Creamer with assault in the first degree. However, the State neither filed an amended information nor dismissed the information previously filed as part of the plea agreement. The trial for first-degree assault, therefore, took place with the last charging instrument being for second-degree assault.³

The robbery charge was subsequently dismissed and Creamer proceeded to trial solely on the charge of first-degree assault. He was found guilty of that offense, and was subsequently sentenced to a term of ten years' imprisonment. This appeal follows.

Discussion

Creamer presents four points on appeal. We find his second point to be dispositive. In that point on appeal, Creamer argues that the trial court plainly erred by setting aside his guilty plea to the offense of assault in the second degree, sua sponte, based upon statements that he did not commit either offense and that were made after acceptance of his plea and which were incorporated into the pre-sentence investigation report.

While Creamer raised this issue in his motion for new trial, he failed to bring a contemporaneous objection at the hearing on April 3 during which the court set his guilty plea aside. Thus, the issue has not been properly preserved for appeal, and we may reverse only if the trial court's actions constituted plain error. State v. Pennington, 24 S.W.3d 185, 188 (Mo.App. 2000). Pursuant to Rule 30.20, we may grant review for plain error if we find that the error resulted in a manifest injustice or a miscarriage of justice. See State v. DeWeese, 79 S.W.3d 456, 457 (Mo.App. 2002).

Recitation of some basic principles relating to guilty pleas helps illuminate the issue. A defendant has no constitutional right to have his guilty pleas accepted. State v. Cotton, 621 S.W.2d 296, 301 (Mo.App.1981); State v. Banks, 135 S.W.3d 497, 500 (Mo.App.2004). For this reason, it is well settled that a trial court may exercise its sound discretion to reject a guilty plea. State v. Copeland, 928 S.W.2d 828, 840 (Mo. banc 1996). Nor is the court required to accept a plea bargain. State v. DeClue, 805 S.W.2d 253, 256 (Mo.App.1991).⁴

The general requirements of a plea are that it be knowing and voluntary and that a sufficient factual basis be shown on the record to show guilt of the crime charged. Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002). The defendant, however, need not establish that factual basis. In fact, a defendant who protests his innocence may still enter a valid guilty plea if done knowingly and voluntarily. State v. Hunter, 840 S.W.2d 850, 864 (Mo. banc 1992).

Once a defendant has made a guilty plea, he may seek its withdrawal before sentencing under Rule 29.07(d) and after sentencing only under Rule 24.035.⁵ A defendant may withdraw a guilty plea only after acceptance and before sentencing by persuading the court that the plea was involuntary. Moore v. State, 853 S.W.2d 378, 380 (Mo.App.1993). Mere change of heart or sudden protestations of innocence are not enough. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court approved the acceptance of a plea of guilty from a defendant who is unwilling or unable to admit participation in acts constituting the crime charged so long as the plea is knowingly and voluntarily entered and is supported by a strong factual basis. Scroggins v. State, 859 S.W.2d 704, 705 n. 2 (Mo.App.1993).

A court is no more required to accept an Alford plea than it is any other guilty plea. Nor is an Alford plea treated differently than a guilty plea where the accused admits the commission of the crime charged. Wilson v. State, 813 S.W.2d 833, 843 (Mo. banc 1991).

Significance of Acceptance of a Guilty Plea

Acceptance of the guilty plea typically occurs at the conclusion of the plea proceeding.⁶ Acceptance of the plea carries legal significance. First and foremost, the acceptance of a guilty plea waives all affirmative defenses and non-jurisdictional defenses the defendant could raise. See Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992) (quoting State v. Cody, 525 S.W.2d 333, 335 (Mo. banc 1975), overruled on other grounds by State v. Heslop, 842 S.W.2d 72, 74 (Mo. banc 1992)); Geren v. State, 473 S.W.2d 704, 707 (Mo.1971) (citing collected cases).

Up until acceptance of the guilty plea by the trial court, a defendant has unfettered latitude to withdraw his plea. Likewise, the trial court has virtually unlimited discretion prior to acceptance of the plea to refuse any plea of guilty outright or to reject any plea bargain between the State and the defendant. Acceptance of the plea, however, also places limits upon the trial court's ability to set aside the plea.

Although this court has previously reasoned that "a defendant acquires no protected interest in a guilty plea accepted pending further proceedings in the case if subsequent developments indicate that either the court or the defendant erred in some material aspect of the initial plea tender and acceptance," State v. Douglas, 622 S.W.2d 28, 30 (Mo.App.1981), that statement is necessarily tempered by the double jeopardy doctrine. Double jeopardy attaches upon the unqualified acceptance of a guilty plea. Peiffer v. State, 88 S.W.3d 439, 444 (Mo. banc 2002). This limits the circumstances under which a guilty plea may be properly set aside and the defendant subjected to trial for an offense. See id. at 445. Normally, the defendant initiates withdrawal of a guilty plea. The grounds under which a defendant can seek to have his guilty plea withdrawn are set out in Rule 29.07(d). Id.

There is no rule that expressly addresses the circumstances under which a trial court can order the withdrawal of a guilty plea on its own motion. However, given that double jeopardy attaches upon unqualified acceptance of the plea, some guidance may be provided by cases addressing double jeopardy in the trial context. Specifically, a court may declare a mistrial sua sponte and retry the defendant without violating the double jeopardy clause if the declaration of mistrial meets the "manifest necessity" doctrine. See State v. Smith, 988 S.W.2d 71, 80 (Mo.App. 1999). Put another way, a declaration of mistrial and subsequent retrial will not violate double jeopardy if justice would not have been served by continuation of the original proceedings. See id.

There are analogous circumstances in which the trial court can withdraw acceptance of a previously entered guilty plea. For example, it has been held that Rule 24.02(c) inferentially permits a trial court to take such action when it determines that a...