State v. Gee, 51621

• Decision Date: 10 October 1966
• Docket Number: No. 2,No. 51621,51621,2
• Citation: 408 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Leo GEE, Appellant
• Court: Missouri Supreme Court

Page 1

408 S.W.2d 1

STATE of Missouri, Respondent, v. Leo GEE, Appellant.

No. 51621.

Supreme Court of Missouri, Division No. 2.

Oct. 10, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 14, 1966.

Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.

No attorney for appellant.

DONNELLY, Judge.

Defendant, Leo Gee, entered a plea of guilty to the charges of burglary in the second degree and stealing in the Circuit Court of New Madrid County, Missouri on November 24, 1964, and was sentenced to imprisonment for a term of five years for burglary and a term of five years for stealing, the sentences to run consecutively. and V.A.M.R.). to statutes are to RSMo 1959 and V.A.M.S., and reference to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.).

On June 19, 1965, defendant filed in the Circuit Court of New Madrid County his motion to vacate or correct sentence under Rule 27.26. The Circuit Court of New Madrid County considered the motion on June 22, 1965, and overruled it without an evidentiary hearing. Defendant perfected an appeal to this Court.

Defendant asserts in his motion: (1) that he was held without bail for over twenty hours (in violation of Rule 21.11 and § 544.260, Rule 21.12 and § 544.040, and Rule 21.14 and § 544.170); (2) that he was deprived of the right to preliminary examination in the Magistrate Court of New Madrid County on the charge of Stealing (in violation of Rule 23.02 and § 544.250); (3) that he was denied the assistance of counsel (in violation of Rule 29.01); and (4) that he was deluded and induced to enter a plea of guilty (in violation of Rule 25.04).

The record shows that the complaint filed in the Magistrate Court of New Madrid County charged defendant with burglary in the second degree with intent to steal (§ 560.070) but did not charge defendant with stealing (§ 560.156). State v. Dooly, 64 Mo. 146. The information filed in the Circuit Court of New Madrid County charged defendant with burglary in the second degree and stealing. The record also shows that defendant was arraigned in the Circuit Court of New Madrid County and, without counsel, entered a plea of guilty to the charges of burglary and stealing. Defendant was not given a preliminary hearing on the charge of stealing. In fact, he was not charged with stealing until the filing of the information in the circuit court.

Application of general rules of law would cause us to hold that the fact, even if true, that defendant was held without bail for over twenty hours, cannot now be the basis for a collateral attack upon the judgment. State v. Keeble, Mo.Sup., 399 S.W.2d 118, 122; State v. King, Mo.Supp., 380 S.W.2d 370, 377. Further, the general rule would be that when defendant entered a plea of guilty, without making objection to the fact that he had not been charged with the offense of stealing in the magistrate court and had been given no preliminary hearing on the charge of stealing, he waived those requirements. State v. Richardson, Mo.Sup., 347 S.W.2d 165, 169; Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622; State v. Keeble, supra; State v. Shaw, Mo.Sup., 357 S.W.2d 894, 896(3).

However, before these rules of law may be applied, it must first be ascertained whether the plea of guilty, which makes such rules operable, was properly accepted and entered. Defendant in his motion asserts that he was deluded and induced to enter a plea of guilty.

Rule 25.04 reads in part as follows: 'The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.'

In State v. Williams, Mo.Sup., 361 S.W.2d 772, at 775, this Court stated: 'We have said: 'The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The law favors a trial on its merits.' State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; see also State v. Hare, 331 Mo. 707, 56 S.W.2d 141; State v. Harris, 336 Mo. 737, 81 S.W.2d 319; State v. Hovis, 353 Mo. 602, 183 S.W.2d 147; State v. Blatherwick, 238 Mo.App. 1005, 191 S.W.2d 1021. A leading Missouri case is State v. Stephens, 71 Mo. 535, 536, in which it is said: 'Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.' Thereafter in State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764, this Court said: 'It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty?''

Intertwined with the question of the validity of the plea of guilty is the question whether defendant should have been given counsel on arraignment.

In Hamilton v. State of Alabama, 368 U.S. 52, at 55, 82 S.Ct. 157, at 159, 7 L.Ed.2d 114 the United States Supreme Court stated: 'Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.' In Von Moltke v. Gillies, 332 U.S. 708 at 723 and 724, 68 S.Ct. 316, at 323, 92 L.Ed. 309, the United States Supreme Court stated: 'We have said: 'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is as stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as...