State v. England

Decision Date27 February 1980
Docket NumberNo. 11285,11285
Citation599 S.W.2d 942
PartiesSTATE of Missouri, Respondent, v. Bob ENGLAND, a/k/a Robert England, Appellant.
CourtMissouri Court of Appeals

Joseph B. Phillips, Phillips & Phillips, Stockton, for appellant.

John Ashcroft, Atty. Gen., Paul R. Otto, Kathleen Mills, Asst. Attys. Gen., Jefferson City, for respondent.

FLANIGAN, Chief Judge.

Defendant, charged with burglary and stealing, entered a plea of guilty. Before imposition of sentence defendant moved to withdraw his plea. Rule 29.07(d). 1 The trial court denied the motion and sentenced defendant to two years' confinement for each offense with the terms of confinement to run consecutively.

Defendant asserts, for reasons to be discussed later, that the trial court erred in denying his motion to withdraw the guilty plea. Before taking up defendant's assertion it is necessary to consider the state's contention that this court is without jurisdiction to entertain this appeal. That contention is unsound.

The state takes the position that the order of the trial court denying defendant's motion is not an appealable order. The state relies primarily upon State v. Myers, 588 S.W.2d 236 (Mo.App.1979). Myers is distinguishable. There the motion to withdraw the guilty plea was made after imposition of sentence. The court dismissed the appeal "without prejudice to further proceeding by Rule 27.26 motion."

Where a motion to withdraw a plea of guilty is made before imposition of sentence, an order denying the motion is an appealable order. State v. Nielsen, 547 S.W.2d 153, 154 (Mo.App.1977). See also State v. Begley, 534 S.W.2d 632, 634(1) (Mo.App.1976); State v. White, 429 S.W.2d 277, 281(6) (Mo.App.1968). Indeed in State v. Skaggs, 248 S.W.2d 635 (Mo.1952), where the motion to withdraw the plea was made after sentence was imposed, the court entertained the appeal and at p. 636 said, "The action of the trial court in refusing to permit the withdrawal of a plea of guilty is reviewable on appeal to this court."

Rule 32(d) of the Federal Rules of Criminal Procedure is the counterpart of Rule 29.07(d). An order denying a motion, filed under that federal rule, to withdraw a plea of guilty is an appealable order whether the motion is made before imposition of sentence, U. S. v. Morrow, 537 F.2d 120, 145 (5th Cir. 1976); Kadwell v. U. S., 315 F.2d 667 (9th Cir. 1963); U. S. v. Colonna, 142 F.2d 210 (3rd Cir. 1944), or after imposition of sentence, U. S. v. Washington, 341 F.2d 277, 281 (3rd Cir. 1965).

The state also argues that the notice of appeal is defective. Rule 30.01(e) lists certain things which the notice of appeal "shall specify," one of which is, "the judgment or order appealed from." The instant notice of appeal states that the defendant "appeals from the judgment entered in this action on the 17th day of January, 1979." The state's brief says, "Defendant does not appeal the order of the court (denying the motion to withdraw the guilty plea) but rather appeals the judgment, i. e., the conviction and sentence."

Both the denial of the motion to withdraw the guilty plea and the entry of judgment and sentence were effected on January 17, 1979. Defendant's notice of appeal, in addition to containing the language previously mentioned, recited that the court, on that date, denied his motion to withdraw his plea of guilty.

Missouri appellate courts are lenient in gauging the adequacy of a notice of appeal and usually tolerate technical imperfections. See State v. Perkins, 543 S.W.2d 805, 806(1) (Mo.App.1976). (Defendant was convicted of rape and robbery; notice of appeal, stating conviction was for rape and sodomy, held adequate.) See also State v. Todd, 433 S.W.2d 550, 554(4) (Mo.1968); State v. Hicks, 376 S.W.2d 160, 161(1) (Mo.1964).

Rule 3(c) of the Federal Rules of Appellate Procedure is the counterpart of Rule 30.01(e). In discussing the federal rule, a leading authority states: "Defects in the wording of the notice of appeal are generally overlooked if the true intentions of the appellant can fairly be ascertained, if the courts have not been misled, and if the other parties have suffered no prejudice." Wright, Fed.Prac. & Proc., Vol. 16, § 3949, p. 355.

This court holds that the order of the trial court denying defendant's motion to withdraw his plea of guilty, made before imposition of sentence, is an appealable order and that the instant notice of appeal is not so defective that it invalidates the appeal.

Defendant's contention is that the trial court erred in denying his motion to withdraw his guilty plea for the reason that the plea agreement "created a reasonable expectation" in defendant that if the presentence report recommended parole, the court would follow that recommendation and when the court, after receiving that recommendation, refused to follow it, defendant had a right to withdraw his guilty plea.

The information, filed on August 15, 1977, in addition to alleging a prior conviction, charged the defendant with committing the instant offenses on June 16, 1977. On August 17, 1977, defendant entered a plea of not guilty to each offense.

On October 18, 1978, a hearing was held. The state appeared by prosecuting attorney James P. Anderton and the defendant appeared in person and by his attorney Joseph B. Phillips. Attorney Phillips informed the court that defendant desired to withdraw the not guilty pleas. The defendant took the stand and testified that he had discussed the matter with attorney Phillips and had filled out and signed a questionnaire which gave him information concerning the effect of a guilty plea. The questionnaire was received in evidence. Included in the questionnaire were questions 16 and 17, and defendant's answers thereto, which read:

"16. Have you been told or led to believe by any person, including any law enforcement officer, prosecuting attorney, your attorney, or a friend or relative that if you entered a plea of guilty that any certain punishment would be imposed? No.

"17. Do you understand if any such person has made any such statement to you, that such statement is only their opinion, or their recommendation and is not binding on the court? Yes."

The following then occurred:

"THE COURT: Has there been any plea bargaining in connection with this case?

MR. ANDERTON: Your Honor, just to the limited extent the State had agreed to recommend to Your Honor that presentence investigation be done on the defendant prior to sentencing and that you consider the report from the probation and parole department in your sentence. That was the State's only agreement.

THE COURT: Is that the way you understand it, Mr. Phillips?

MR. PHILLIPS: That was my understanding of the agreement.

THE COURT: Is that the way you understand it, Mr. England?

THE DEFENDANT: Yes, sir.

THE COURT: You're not relying on any representations made to you in any manner by the State other than the fact that they would recommend a presentence investigation to be made?

THE DEFENDANT: Yes, sir.

THE COURT: And you want to enter a plea of guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Based on your testimony and based on the questions and answers contained in defendant's exhibit number one (the questionnaire).

THE DEFENDANT: Yes, sir."

The court accepted the plea and ordered a presentence investigation.

On December 20, 1978, the presentence investigation report was filed. In that report the state probation and parole officer said: "This officer believes that defendant should be granted a suspended execution of sentence and be placed on probation."

On January 17, 1979, another hearing was held at which the defendant appeared personally and with attorney Phillips. There was no appearance for the state. Attorney Phillips said he would "waive the absence of the prosecutor." 2 The following then occurred:

"THE COURT: Was there any recommendation made at the time he entered his plea?

MR. PHILLIPS: I think the recommendation of the Prosecutor, from my understanding of it, was that he requested the Court to order a presentence investigation and he would abide by the

THE COURT: There's been no plea bargaining then?

MR. PHILLIPS: Well, that was the plea bargaining, that he would have the Court make a presentence recommend to the Court that the Court make a presentence investigation and if the investigation recommended parole he was not opposed to it."

The court then informed the defendant that the presentence investigation report had been filed and that it recommended probation "but I think you might as well know that I am not going to go along with it." In response to a question by the court, the defendant stated he had no lawful cause for judgment and sentence not to be pronounced at that time. A recess was granted for defendant to confer with attorney Phillips. Following that recess Phillips asked the court what sentence the court was going to impose and the court responded, "You may inquire but I am not going to tell you because I think you are just going to play games with me." Thereupon Phillips said, "I move to withdraw our plea of guilty under the recent case in the supreme court about plea bargaining arrangements." The motion was denied and the court rendered judgment and pronounced sentence.

The sole authority cited by defendant in support of his contention is Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978). In Schellert the prosecutor told the defendant that if he pleaded guilty the state would recommend probation. Although the trial court informed the defendant that the court was not bound by the recommendation, the court did not inform the defendant that the recommendation was not going to be followed. The court sentenced defendant to five years' imprisonment. The supreme court vacated the conviction, set aside the guilty plea, and remanded the case to the trial court for the...

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  • State v. Knox
    • United States
    • Missouri Court of Appeals
    • June 12, 2018
    ..., 440 S.W.2d 441, 443 (Mo. 1969). State v. Nielsen , 547 S.W.2d 153, 158 (Mo. App. 1977) (internal footnote omitted); State v. England , 599 S.W.2d 942 (Mo. App. S.D. 1980).5 I.Knox's first point on appeal alleges that the circuit court erred in failing to sustain his Rule 29.07(d) motion b......
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    ...court's review is limited to a determination of whether the trial court's ruling is an abuse of discretion. State v. England, 599 S.W.2d 942, 947[4-6] (Mo.App.1980); State v. Nielsen, 547 S.W.2d 153, 158[1-4] State v. McCollum, supra, at 83. Even had the movant filed a presentence motion, t......
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