State v. Freedman

• Decision Date: 10 October 1955
• Docket Number: No. 1,No. 44743,44743,1
• Parties: STATE of Missouri, Respondent, v. Rueben Rothschild FREEDMAN, Appellant
• Court: Missouri Supreme Court

Page 576

282 S.W.2d 576

STATE of Missouri, Respondent, v. Rueben Rothschild FREEDMAN, Appellant.

No. 44743.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1955.

No attorney for appellant.

John M. Dalton, Atty. Gen., Aubrey R. Hammett, Asst. Atty. Gen., for respondent.

DALTON, Presiding Judge.

This is an appeal from a final judgment denying relief to petitioner (appellant here) in a proceeding instituted under 42 V.A.M.S. Supreme Court Rule No. 27.26 (Rules of Criminal Procedure) to correct, vacate and set aside a judgment of conviction for forgery in the second degree (uttering a forged check) and a sentence of five years in the state penitentiary, as entered upon a plea of guilty in the circuit court of Jackson County on November 24, 1954. See Sections 561.090 and 561.330, RSMo 1949, V.A.M.S. Appellant is now a prisoner in the custody of the warden of the Missouri State Penitentiary serving the mentioned sentence, and he prosecutes this appeal as a poor person. We review the record de novo. See Supreme Court Rules 27.26, 28.03 and 28.05.

The motion, as originally filed in the circuit court, charged (1) police brutality to obtain appellant's confession; (2) the insufficiency of evidence to prove guilt, to wit, that 'at no time was the defendant's handwriting identified with the spurious checks allegedly passed by him'; (3) the failure of appellant's employed and paid counsel to give 'effective legal services'; (4) the failure of the court to assess a three year penalty when appellant had 'offered to plead guilty on a promise of three years,' and had 'plead guilty to second degree forgery, assuming that the offer of three years would stand as of November 22, 1954' (on which prior date, appellant had declined to plead and the cause had been continued); and (5) that the plea of guilty had been entered under duress, because, otherwise, appellant was to be prosecuted under the habitual criminal act.

The prosecuting attorney was duly notified of the motion. The court, at appellant's request, appointed counsel to represent appellant at the hearing on the motion. Time was given for appellant to confer with counsel and the motion was promptly heard and ruled by the court on December 7, 1954. Subsequently, the court appointed counsel to assist appellant to perfect his appeal to this court.

The transcript of the record, as made at the time the plea of guilty was entered, shows that appellant was charged with forgery in the second degree, to wit, feloniously uttering a forged check for $84.17 to Sam Flacks in Jackson County on June 22, 1954. Appellant had had a preliminary hearing in the magistrate court on this charge on July 21, 1954, and had been bound over to the circuit court. He had also waived a hearing on another and similar charge of forgery in the second degree. Informations charging offenses under Sec. 561.090, supra, had been duly filed in the circuit court. Thereafter, with reference to the first charge, the record shows that on July 27, 1954, appellant appeared in the circuit court to answer said charge, 'whereupon the court informed said defendant of the nature of the charge against him, and the punishment therefor, and of his right to counsel, and explained wherein the exercise of said right might be of benefit to said defendant, and after interrogating defendant, the Court finds that defendant is mentally able and sufficiently informed to decide his need for counsel, and the Court offered to appoint counsel for defendant to conduct his defense, but defendant waived such right to counsel; whereupon, defendant is duly arraigned and enters a plea of not guilty to the charge of Forgery Second Degree, Uttering * * *.'

Thereafter, on November 22, 1954, appellant appeared in court with hired counsel and at his request the cases were continued. On November 24, 1954, appellant again appeared in open court with hired counsel and withdrew his plea of not guilty in the first case and entered a plea of guilty. The record shows that the court thereupon questioned appellant at length and ascertained that his true name was Rueben Freedman; that he had had an opportunity to discuss the pending charge with his attorney; that counsel appearing with him was in fact his attorney; that he had discussed the charge with the rabbi; that he had been in jail five months; that he could have had visitors if they had wanted to come; that the charge had been read to him when he was arraigned; that he fully understood what the charge was; that appellant wanted to plead guilty and throw himself upon the mercy of the court; that he was 52 years of age and had spent 30 years in prison; that he was 'involved in a forgery ring' when he committed the offense charged; and that he did not know the persons with whom he dealt, except that they were from Chicago. Counsel for the state then advised the court concerning defendant's prior statements to the police concerning his associates and their method of operation and as to appellant's statement that they were from Detroit, Michigan. Counsel also advised the court that there were 13 checks in defendant's file totaling around $700; and that defendant had previously 'done twenty-four years.' Counsel for the state further stated: 'I initially was going to recommend three years, but he (appellant) thought I was an awful hard man, so I will not make any recommendation. I will leave it to the Court, because I don't want him to think I am too hard.' Defendant's counsel then said: 'Your Honor, I think the recommendation of three years is more than fair, and I respectfully request the Court to follow it because of the defendant's attitude, and the Court has an opportunity to see that. One of the things that can be said in his favor, one of the few things, is that he is not a man of violence * * *.' Counsel later referred to appellant's victims, the merchants, as being 'greedy and gullible' and as being willing to take checks from anybody. The Court then referred to appellant's record as including charges of 'gross indecency and attempted sodomy'--'Investigation for rape,' etc. and asked, if there was any reason the court 'should not now pass sentence,' to which question appellant personally answered 'No, sir,' and the court fixed the penalty at 5 years. The court then called attention to the second charge of the same nature pending against defendant. Counsel for the prosecution stated that the state desired to have this case disposed of and to have the penalty run concurrently with the penalty in the first case, but appellant then objected and said he had not had an opportunity to consult his attorney as to the second charge. Appellant further complained to the court of the penalty assessed in the prior case and insisted that his past should be 'a closed book.' The Court replied: 'You are still the same man.' The court refused to change the penalty and proceeded to pronounce sentence and enter final judgment.

It further appears from the transcript of the hearing on the motion that counsel appointed for appellant asked the court if appellant could be placed in a mental institution and have an operation, lobotomy, to deter him from further criminal tendencies. The request was denied. The court said: 'I have had this man before me now several times and have spoken with him and had ample opportunity to observe him * * * I don't find anything to cause me to believe that he is in any way mentally insane. I am positive he knows the difference between right and wrong. If you had heard the wonderful selling argument that he gave me at the time of his sentencing about how he wanted to rehabilitate and that he now knew that he must change his ways and be honest from this time forth, you would be as certain as I am that he is at least of sufficient mentality that as a matter of law there is nothing that could be gained by that sort of thing, and I am going to overrule that oral request.'

Appellant's appointed counsel then stated: 'His main objection, we will call it, to his sentencing here is that he feels that he was discriminated against by the Court because he didn't accept three years at the time that the three years was suggested by the State and defense attorney, Mr. Ergovich.' The Court answered: 'Well, my answer to that is that I didn't discriminate against him. As a matter of fact, the Prosecuting Attorney made no recommendation and I determined his sentence by the crime that was involved, his plea of guilty, his own statement to me as to what happened, and what he thought ought to be done, plus his own admission of his past record of numerous prior convictions.'

In the hearing on the motion defendant gave his name as Ray Rothschild Freedman. He testified that he was in court on November 22, 1954 and that he was granted a deferment until November 24th; that he had been arrested June 22, 1954 by the Kansas City Police Department; that he was 'mistreated practically every half hour on the hour during the time that' he was in jail to extort a confession; that he had been out of prison only a month; that he had 'held five jobs down in a period of about ten days'; that he had had $683 which was taken from him and not returned; that he had employed an attorney and paid $250 to be represented; that he had an understanding with the attorney he was 'to get jail time or not worse than 2 years'; that he talked to his attorney several times, but the conversations were 'off the record' and of a matter not 'discretionary to discuss'; that he saw his attorney on three court appearances; that he had waived a hearing on the second charge in Magistrate Court; that on November 22, 1954, his attorney said that three years was the best he could get and defendant protested that such was contrary to the agreement; that he heard the assistant prosecutor say that he (defendant) could take that or he would try him as an habitual criminal; that counsel for the state advised the court he had offered three...