State v. Edmondson, 53561

• Decision Date: 10 February 1969
• Docket Number: No. 53561,No. 1,53561,1
• Citation: 438 S.W.2d 237
• Parties: STATE of Missouri, Appellant, v. George Ben EDMONDSON, Respondent
• Court: Missouri Supreme Court

Page 237

438 S.W.2d 237

STATE of Missouri, Appellant, v. George Ben EDMONDSON, Respondent.

No. 53561.

Supreme Court of Missouri, Division No. 1.

Feb. 10, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Special Asst. Atty. Gen., St. Louis, for appellant.

James A. Dunn, Carthage, for respondent.

STORCKMAN, Judge.

This appeal is by the state from a trial court order sustaining the motion of George Ben Edmondson under S.Ct. Rule 27.26, V.A.M.R., to set aside a judgment of conviction and sentence entered on a plea of guilty to a charge of first-degree robbery. A prison term of ten years was imposed and the movant is now in the custody of the Department of Corrections of the State of Missouri. On a showing of indigency, counsel was appointed by the trial court. The same counsel briefed and argued the case for the movant as respondent on appeal.

The history of the case goes back to 1961. In December of that year, the J. C. Penney store in Springfield, Missouri, was robbed. Edmondson was apprehended in Albuquerque, New Mexico, and returned to Greene County where he was charged, tried and convicted of the offense and sentenced to a term of thirty years. On appeal to this court, the judgment of conviction was reversed and the cause remanded because of the admission of evidence obtained by an unreasonable search and seizure in violation of the defendant's constitutional rights. See State v. Edmondson, Mo., 379 S.W.2d 486.

After remand the defendant applied for and was granted a change of venue. The cause was sent to Jasper County and Edmondson was transferred to the county jail in Carthage. At his first trial Edmondson was represented by counsel of his own choosing, but on the application for change of venue and since then he has been represented by court-appointed counsel, several in number successively appointed. On February 16, 1965, the defendant withdrew his plea of not guilty and entered a guilty plea. Two Jasper County lawyers appointed to represent Edmondson on February 1, 1965, were present at the hearing. The sentence of ten years was credited with time spent in jail and the penitentiary amounting to 1131 days. Pursuant to the sentence, Edmondson was committed to the Missouri State Penitentiary from which he escaped on August 31, 1965. He went to Canada where he worked as a civil engineer until he was apprehended and returned to the Missouri penitentiary.

Thereafter, on September 13, 1967, the prisoner filed this 27.26 motion pro se. Mr. James Dunn was appointed as his counsel and filed an amended motion in the form and manner provided by the amendments to Rule 27.26 which became effective September 1, 1967. An evidentiary hearing was held December 5, 1967, and thereafter the motion was sustained. Since the memorandum opinion of the trial court filed with the judgment states the issues made by the motion, additional facts, the court's findings and the reasons for his rulings, it will be set out in full. The judgment rendered December 19, 1967, recites that the movant Edmondson appeared at the hearing on December 5, 1967, by James Dunn his attorney, and the state appeared by Jack Yocom, the prosecuting attorney of Greene County. The judgment further states that 'it is ordered and adjudged by the Court that the Movant's plea of guilty on the 16th day of February, 1965, and the Judgment and Sentence entered thereon be and the same is hereby vacated, set aside and for naught held and esteemed and that the Movant George Ben Edmondson be granted a new trial or any further proceedings, on the information now pending in the case of State of Missouri vs George Ben Edmondson, Number 11397.'

The memorandum opinion of the court filed with the judgment states the issues made by the motion, additional facts, the court's findings and the reasons for his rulings as follows:

'This matter comes before the court on a Motion filed by movant to set aside a plea of guilty entered in this court on February 16, 1965, in Case No. 11397 in which the State of Missouri charged the defendant George Ben Edmondson, the movant herein, with the offense of Robbery in the first degree.

'The information in this case was originally filed in Greene County, Missouri, where a trial was held and the defendant was found guilty of the offense charged. Defendant appealed to the Supreme Court of Missouri and the case was reversed and remanded for a new trial by reason of error committed at the trial. (See State of Missouri v. George Ben Edmondson, 379 S.W.2d 486.) Thereafter the case was transferred to the Circuit Court of Jasper County on defendant's application for a change of venue from Greene County.

'At the original trial in Greene County defendant was represented by paid counsel but after the reversal it was necessary for both the court of Greene County and Jasper County to appoint counsel for defendant for the reason he was without funds to employ counsel.

'Movant's original motion to set aside his plea of guilty filed under Supreme Court Rule 27.26 as amended and effective September 1, 1967, was filed by movant, and pursuant to that rule this court appointed Mr. James Dunn, Attorney at Law of Carthage, Missouri, to represent him. In accordance with the provisions of Rule 27.26 Mr. Dunn filed an Amended Motion to vacate the sentence after conferring with Mr. Edmondson. It was upon the amended motion that this hearing was held on December 5, 1967.

'The grounds set out in movant's motion are as follows:

'(a) Plea of Guilty was improvidently entered because applicant was not properly advised as to the effect of the Supreme Court's decision in his appeal from a previous conviction for the same charge.

'(b) Applicant was not properly advised by his appointed counsel because said appointed counsel did not adequately examine the transcript of his previous conviction for the same offense.

'(c) Applicant was mislead into entering a plea of guilty by his appointed counsel which caused applicant to believe an agreement had been reached and that his sentence would be five years with credit for all time served.

'(d) Counsel was appointed by the court so late so as to prevent any real or intelligent investigation and preparation for trial in view of the seriousness of the charge, the nature of the anticipated evidence and all of the attendant facts and circumstances.

'(e) The admissible evidence available to the State of Missouri was and is insufficient in law and fact to sustain a conviction for Robbery and applicant was not properly advised of this fact by his appointed counsel.

'(f) The sentence imposed is in violation of both the United States and Missouri Constitutional prohibition against cruel, unusual, inhuman or excessive punishments.

'Under the assignment listed in subparagraph (f) movant claims that the sentence imposed was cruel, unusual, inhuman or excessive for the reason that movant has had a complete change in philosophy, attitude and motivation, and offered to produce testimony to that effect. Such evidence was rejected by this court for the reason that the sentence of ten years was not excessive within the limits prescribed by law for the offense charged, and for the further reason that this court is not in a position to grant clemency in a hearing of this type and must determine this motion as of the conditions which prevailed on February 16, 1965, when the plea of guilty was entered and the sentence pronounced.

'The court feels that there is merit in the other assignments as reflected by the testimony and the record in this case.

'In cases of robbery, rape and murder it has been the custom of this court in the case of appointed counsel, because of the seriousness of those offenses, to appoint two lawyers to represent a defendant. That was what the court attempted to do in this case. Tomas (sic) Strong of Springfield had been appointed in Greene County and filed the application for change of venue and this court appointed James E. Brown of Joplin to assist him. Later after talking with Mr. Strong this court released him as well as Mr. Brown and after conferring with Senator Arkley Frieze and Vernie Crandall of Carthage the court appointed them to represent the defendant. Later Senator Frieze advised the court that he was having so much difficulty with Mr. Edmondson's father that he felt he must ask to be released and the court then released the firm of Frieze & Crandall as attorneys for defendant. Since appointed counsel must work without compensation this court felt that since Mr. Newberry of Springfield received compensation for representing Mr. Edmondson in the first trial he could better afford to render such services to Mr. Edmondson in a retrial and would be familiar with the details of the case and he was appointed along with Mr. Max Patten, Attorney of Joplin, as local attorney. The court then learned of some difficulties which arose in connection with the appeal after the trial in Greene County and the court released Mr. Newberry and proceeded to appoint attorneys who would be able to render Mr. Edmondson adequate service.

'Thereafter on February 1, 1965, this court conferred with Mr. Emerson Foulke and Mr. Max Patten, attorneys of Joplin, and appointed them to represent Mr. Edmondson.

'This case was transferred to Jasper County from Greene County September 14, 1964, the order of transfer having been made in the Circuit Court of Greene County under date of September 3, 1964.

'After this court appointed Mr. Foulke and Mr. Patten to represent Mr. Edmondson, and after conferring with Mr. Don Burrell, Prosecuting Attorney of Greene County, this court advised Mr. Foulke and Mr. Patten that if Mr. Edmondson should desire to enter a plea of guilty to the pending charge the court would be willing to sentence him to ten years in the state penitentiary and give him credit for his time in jail and the penitentiary since his arrest in Greene County which was approximately three years. Later either...